June 11, 2009
Secretary of State Clinton is Constitutional, says OLC
The Office of Legal Counsel opined in a little noticed (even non-noticed?) memo on May 20, 2009, that legislation designed to roll back a salary increase for an executive office can ensure compliance with the Emoluments Clause (or the Ineligibility Clause), if the rollback occured before a Senator or Representative was appointed to that office.
The memo, written by Acting Assistant AG David Barron, means that the OLC judged President Obama's appointment of then-Senator Clinton to be Secretary of State, and the salary rollback for that office that immediately preceded her appointment, to be consistent with the Constitution. This kind of rollback has become known as the "Saxby fix," after Senator William Saxby, Nixon's pick for AG, who would have run afoul of the Clause but for a pre-appointment salary rollback for that office. I previously posted on the issue here and here.
The Clause, Article I, Sec. 6, cl. 2, states that
[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time.
The OLC wrote that the words "shall have been encreased" have two possible meanings:
Under the first interpretation, "shall have been encreased" means "shall have ever been encreased." The Clause thus would call for a series of "snapshots": if at any time during the term of a member of Congress the emoluments of an office are higher than at another time, the emoluments have "encreased" during the member's congressional term . . . . The alternative interpretation is to read "shall have been encreased during such time" as "shall have been encreased on net during such time," thereby prohibiting the appointment of a congressional member to an office only when the emoluments of the office are greater at the time of appointment than they were at the start of the member's term.
Without a "plain meaning" of the Clause, the OLC looked at drafters' and ratifiers' understandings, the purpose of the Clause, and the history of the application of the Clause and judged them all to point toward the "on net" interpretation.
In so opining, the OLC rejected the opposite conclusion in a 1987 OLC memo (attached to the recently issued memo in the link above).
It's a little surprising that the recent memo went unnoticed for two reasons. First, the issue got a lot of attention prior to Clinton's appointment.
But more: This memo is conspicuous in that it's the only OLC memo issued by the Obama administration that appears on the DOJ web-site. We know the OLC has been hard at work in the first months of the Obama administration. For an administration committed to openness and transparency, we might expect more of this work to be more available.
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