Saxbe fix

envisioned ethical conflict, resulting in the United States Constitution's Ineligibility Clause, which later gave rise to the Saxbe fix. In his notes of the Philadelphia Convention in 1787, James Madison expressed the fear that members of Congress would create new federal jobs, or increase the salaries for existing jobs, and then take those jobs for themselves. Madison wrote that corrupt legislative actions, in the form of the unnecessary creation of offices and the increase of salaries for personal benefit, were one of his greatest concerns. The delegates who were present agreed that no member of Congress should be eligible to be appointed to an executive position while serving in Congress. Madison originally proposed a one-year length on such a bar. Charles Cotesworth Pinckney moved that the states vote and the prohibition carried by vote of 8 states to 3. Robert Yates noted that the clause "which shall have been created, or the Emoluments whereof shall have been increased" was an amendment passed in his absence, and that he did not place much faith in it as he felt unscrupulous politicians would circumvent it by creating new positions for persons who would subsequently place a member of Congress in a vacancy that they and not Congress created. Legal scholars have accorded this clause little attention in their academic writings and there have been no cases which directly applied the clause, as no plaintiff has been able to establish legal standing. Most scholarly texts on the Constitution ignore the clause. Although the Saxbe fix is named for Nixon nominee William Saxbe, the device's first intentional use predates him by several decades. As a matter of historical tradition, the Saxbe fix is considered sufficient to remove the disqualification of the Ineligibility Clause. == History ==

18th and 19th centuries The Ineligibility Clause has interfered with appointments as far back as 1793. President George Washington attempted to appoint William Paterson to the Supreme Court on February 27, 1793, after the resignation of Associate Justice Thomas Johnson. However, Paterson, who was serving as Governor of New Jersey, had previously been elected to serve a Senate term that would expire at noon on March 4, 1793. Washington withdrew the nomination and withheld it until the afternoon of March 4, when the term for the disqualifying office had expired. In 1882, a formal opinion by the Attorney General concluded that resignation from Congress does not free a member to be appointed to civil office because the Clause speaks to the term for which a member was elected, and that term still exists, even if a member resigns. In 1896, the Comptroller of the Treasury determined, after the fact, that former Senator Matthew Ransom's appointment as Minister to Mexico was invalid, as that office's salary had been increased during Ransom's term; the belated discovery precluded Ransom from drawing a salary. The practice of barring members of Congress from serving in other civil offices was not without exception. Ransom, after all, was in fact appointed. 20th century Philander C. Knox In 1909, President-elect Taft announced his intent to nominate Senator Philander C. Knox to be Secretary of State. Shortly after the announcement, the Clause emerged as a problem that caught those involved by surprise: but there was much more opposition in the U.S. House of Representatives, where the same measure failed to get a required two-thirds vote under a motion to suspend the rules and pass, a procedure normally reserved for uncontroversial matters. On March 4, The Senate confirmed all of Taft's Cabinet appointees on March 5, and Knox took office on March 6. In 1922, the boundaries of the Clause were further defined when Senator William S. Kenyon was allowed to accept an appointment by President Warren G. Harding as circuit judge for the Eighth Circuit. Attorney General Harry M. Daugherty concluded that no disqualifying event had occurred because the increase in emoluments to that office had occurred in a term prior to the one Kenyon was serving at the time of the nomination. (Daugherty's opinion would later be reaffirmed by the Clinton administration when Representative Bill Richardson was nominated as U.N. Ambassador.) Saxbe had been a senator in 1969 when the Congress passed a pay increase from $35,000 to $60,000 for Cabinet members. According to , "After considering the report and recommendations of the Commission submitted under section 357 of this title, the president shall transmit to Congress his recommendations with respect to the exact rates of pay, for offices and positions within the purview of subparagraphs (A), (B), (C), and (D) of section 356 of this title, which the president considers to be fair and reasonable ..." The president transmitted "Salary Recommendations For 1969 Increases" to Congress on January 15, 1969 following the first Commission Report submitted to him under in December 1968. (34 F.R. 2241; ). As with the Knox instance, the clause complication caught both Saxbe and the Nixon administration by surprise after the nomination had been announced. In early November 1973 Nixon requested a reduction in emoluments to pre-1969 levels as a remedy to the problem. with conflicting opinions being given by constitutional law professors about whether the proposed remedy was constitutional. passed in the Senate by a 75–16 roll-call vote on November 28 after it was approved by the Senate Post Office and Civil Service Committee and sharply criticized by the Senate Judiciary Committee. The Judiciary Committee approved Saxbe on December 13 and the full Senate confirmed him on December 17 by a 75–10 vote. Ten Democratic senators cited constitutional concerns in opposing this move. Saxbe did not resign his Senate seat until January 4, 1974, when his wife became eligible for survivor benefits after the completion of his fifth year of service. Carter nominated Muskie on April 29, and the Senate confirmed Muskie on May 7 by a 94–2 vote. Unlike the Knox and Saxbe fixes, the salary reduction to allow Muskie's appointment was temporary, reducing the salary only for the duration of Muskie's tenure. Upon the retirement of Supreme Court Justice Lewis F. Powell Jr. in 1987, President Ronald Reagan considered appointing Senator Orrin Hatch to fill his seat. But Congress had, during the term which he was still serving, enacted a salary increase for the judiciary. Two months later, Assistant Attorney General Charles J. Cooper rejected the Saxbe fix in a written opinion, concluding that it did not resolve the Ineligibility Clause issue. On January 5, 1993, , a bill to reduce the salary of the Treasury Secretary from $148,400 to $99,500 (the pre-1989 level), passed by a voice vote in the Senate and by the House on January 6. On January 19, S.J. RES. 1 (1993), which canceled emolument increases for the remainder of Bentsen's term, a term set to expire at noon on January 3, 1995, had been passed by both Houses without objection. However, in a law review article, University of Minnesota Law School Professor Michael Stokes Paulson rejected the Bentsen fix as unconstitutional. In 1994, President Bill Clinton received approval to use a Saxbe fix to appoint United States Senate Majority Leader George J. Mitchell to the Supreme Court, but Mitchell withdrew his name from consideration for reasons unrelated to his eligibility. 21st century The term "Saxbe fix" reentered the public lexicon in 2008 with the speculation that Senator Hillary Clinton was President-elect Barack Obama's preferred nominee to be Secretary of State, fueled by Obama's confirmation of his intent to nominate Clinton December 1, 2008. Before the January 2009 pay increases, secretaries made $191,300 compared to Members of Congress who earned $169,300. Without a Saxbe fix, Clinton would have been ineligible to serve in the Cabinet until the conclusion of the 112th United States Congress in January 2013, near the end of Obama's elected term. taking effect at 12:00 noon on January 20, 2009. cancelling all emolument increases made or to be made during Clinton's Senate term between noon of January 3, 2007, and noon of January 3, 2013. After the Saxbe fix was passed, Judicial Watch said it might seek to halt Clinton's appointment via litigation. On January 29, 2009, a week after Clinton had been sworn into the position, Judicial Watch filed the lawsuit Rodearmel v. Clinton in the United States District Court for the District of Columbia, on behalf of David Rodearmel, a U.S. Foreign Service Officer and State Department employee. The suit claims that Clinton is "constitutionally ineligible" to serve as Secretary of State due to the Ineligibility Clause and that Rodearmel cannot be forced to serve under her, as it would violate the oath he took as a Foreign Service Officer in 1991 to "support and defend" and "bear true faith and allegiance" to the U.S. Constitution. On May 20, the Obama administration Office of Legal Counsel filed an opinion with the district court saying that Clinton's appointment did not violate the Ineligibility Clause, and that an "on net" view of the Clause "presents an entirely natural interpretation of the [Constitution's] language." On October 30, 2009, the District Court dismissed the case, stating "Because Rodearmel has failed to allege that Clinton has taken any action—much less an action that has aggrieved him—he does not come within the 'zone of interests' protected by the Secretary of State Emoluments Act." Senator Ken Salazar, the Secretary of the Interior, also required a Saxbe fix by the 111th United States Congress. The bill was sponsored by Senate Majority Leader Harry Reid, was introduced on January 6, 2009, and became the first public law enacted by the 111th Congress (). During Obama's first term there were three Cabinet members serving who were sitting members of the House or Senate when appointed, two of whom (Clinton and Salazar) required Saxbe fixes. The May 2009 Office of Legal Counsel brief also asserted the constitutionality of Salazar's appointment. ==Legality==

Over time, the Saxbe fix has become politically uncontroversial. Critical review of the clause begins with a study of the terms in the plain language of the clause: "No 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 increased during such time . ... " All of the terms have been at issue in past controversies and many of the terms have been well-settled. Historically, the excluded class of individuals affected by the clause has not been an issue: all scholars have agreed that the clause refers exclusively to all members of Congress. This view is commonly accepted. Moreover, Department of Justice memoranda, outlining official opinions by United States Attorney General, hold that "the Ineligibility Clause covers only increases during the term that a Member of Congress is [or would be] currently serving". Opinions issued by the Clinton administration Office of Legal Counsel often presupposed the application of the clause, Another clarification came in 1969, when newly re-elected Representative Melvin Laird was President-elect Nixon's choice for Secretary of Defense and Congress was expected to raise the pay of Cabinet members in the new term. As stated by University of North Carolina School of Law professor Michael J. Gerhardt, this is the position that "the critical inquiry is not whether the letter of the law has been broken (it has) but rather whether the problem that the clause exists to preclude—conflicts of interest in nominating a member of Congress who has been able to vote himself or herself a raise—has been avoided". The commonly used term for this spirit of the law argument is "net increases". If the Saxbe fix is a solution for the primary problem of self-dealing, a relevant fact is that Congress has not voted to increase any Cabinet salary or benefits since the 1990s, when it granted that power to the president in the form of an across-the-board cost of living adjustment by executive order. However, the Ineligibility Clause does not distinguish between increases in emoluments by legislation and increases by executive order. Because to textualism advocates the language of the rule is an absolute prohibition, law professor and textualist Michael Paulsen has said, a "'fix' can rescind the salary, ... but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls." Most textualists agree that the spirit of the Ineligibility Clause would be addressed by a Saxbe fix, but they dispute that a clause's "spirit" overrides its text. This view is not confined to textualists; for example, law professors Jack Balkin and Mark Tushnet share it, with Tushnet observing that the Saxbe fix "smacks of clever manipulation" and does not adequately address the issue because "rescinding the increase does not mean that the salary 'shall not have been increased'; it simply means that the salary shall have been both increased and reduced during the term." Some intentionalists interpret the Ineligibility Clause as a safeguard against escalation of the size and scope of the federal government and its corresponding budget, in addition to being a safeguard against self-enrichment. They argue that reverting salary increases does not prevent members of Congress from engaging in conduct that would bloat the government. Another argument presented during the Saxbe nomination hearings was that the constitutional framers wrote the Ineligibility Clause to prevent Congress from enacting laws to benefit one of its own members. Any Saxbe fix is such a law and should be disallowed based on this fact alone. Challenges Once Congress approves a salary reduction and the nominee is confirmed, legal experts conclude that in practice it is unlikely that an appointment would be successfully challenged in the courts. The most likely claimant would be an individual who has been adversely affected by a discretionary decision under the nominee's authority—for example someone denied a passport. It has already proven difficult to be recognized as having standing when a fix is not used for a controversial appointment. The courts have dismissed suits contesting the appointments of Justice Hugo Black (Ex parte Levitt, 302 U.S. 633 (1937)) and Judge Abner Mikva (McClure v. Carter, 454 U.S. 1025 (1981)). Black and Mikva were members of Congress (Black of the Senate, Mikva of the House of Representatives) prior to appointment and were appointed without a Saxbe fix. In both cases, the courts held that the plaintiff lacked standing to challenge the appointment. Although Chief Justice John Marshall stated that appointments by the president are completely voluntary, there are restrictions on his statutory authority. For example, the duty to commission officers of the United States is enjoined by the Constitution and he must nominate with the advice and consent of the Senate. • The bar cannot be evaded by resignation from Congress. In a written opinion of Attorney General Benjamin H. Brewster, the clause applies for the term "for which he was elected," not the time during which the member actually holds office. • According to United States v. Hartwell, "Civil office" is one in which the appointee exercises an authoritative role. It does not apply to temporary, honorific, advisory, or occasional postings. The terms civil office and civil officer are used only once each in the Constitution and civil office is never defined therein. • According to McLean v. United States, "Emoluments" means not only salary, but also includes other benefits such as forage and rations. • Under presidents Lyndon B. Johnson and Jimmy Carter, the United States Department of Justice determined that it did not matter when Congress passed legislation increasing the salary for an office, so long as the former member of Congress was nominated before the salary increase went into effect. ==Notes==