Article 1, Section 6, Clause 2

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 encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The Ineligibility Clause prohibits a Member of Congress from being appointed to a federal civil office that was created, or had its compensation increased, during the Member’s elected term. The main intent of this provision is to prevent “legislative corruption” whereby Members vote to create or increase the remuneration of an office that they expect to occupy themselves.1 Appointments to such offices are restricted only “during the Time for which [the Member] was elected.” 2 A former Member may, for example, be appointed to a federal judgeship created during his term, so long as appointment is not made until after the expiration of that term.3 For this reason, as Justice Joseph Story observed, the Clause “does not go to the extent of [its anti-corruption] principle” because a Member may still be influenced by the possibility of holding another office “if the period of his election is short, or the duration of it is approaching its natural termination.” 4

Because of standing and other justiciability requirements, courts have only rarely addressed the Ineligibility Clause.5 In Ex parte Levitt, the Supreme Court ruled on a motion challenging the appointment of Justice Hugo Black, who was a U.S. Senator immediately prior to his appointment and confirmation to the Court in 1937.6 Justice Black was alleged to be constitutionally ineligible for that office because Congress had, during Black’s current Senate term, created a new option that allowed Supreme Court Justices to retire and receive a pension.7 Finding that the movant lacked any direct injury from Justice Black’s appointment beyond “a general interest common to all members of the public,” the Court summarily dismissed the case on standing grounds.8 In another notable decision, the U.S. District Court for the District of Columbia dismissed, for lack of standing, an Ineligibility Clause challenge to then-Senator Hillary Clinton’s appointment as Secretary of State because the salary of that office was increased (but then subsequently decreased) during her Senate term.9

As the courts have largely declined to rule on Ineligibility Clause disputes, Presidents have sought legal opinions from the Department of Justice—through the Attorney General or the Office of Legal Counsel (OLC)—to determine whether particular appointments would accord with the Ineligibility Clause. For example, OLC has opined that when a statute provides for the “possibility of a future salary increase” (such as an annual adjustment) during a Member’s term—but no increase has yet occurred—the Ineligibility Clause does not bar the Member’s appointment to that office.10 Other OLC opinions have found no Ineligibility Clause violation when the President is free to set a salary after the appointment is made11 or when an office is created by the President after the expiration of a Member’s term (even if the nomination occurred prior to the end of that term).12

One area of conflicting opinions on the scope of the Ineligibility Clause concerns the so-called “Saxbe fix.” 13 Under this procedure, Congress reduces (or “rolls back” ) the salary of a particular office to the level it was at the beginning of a Member of Congress’s term, seeking to avoid an Ineligibility Clause violation and enable the appointment of the Member to that office.14 For example, in 1973, President Richard Nixon wished to appoint Senator William Saxbe to be his Attorney General.15 However, during Saxbe’s current Senate term, Congress voted to increase the Attorney General’s salary from $35,000 to $60,000.16 Seeking to comply with the Ineligibility Clause, Congress voted to roll back the Attorney General’s salary to $35,000 before the Senate confirmed Saxbe as Attorney General.17 Although there have been conflicting views within the Executive Branch as to whether such rollbacks actually cure the constitutional problem, recent OLC opinions have concluded that the Saxbe fix complies with the Ineligibility Clause.18

Footnotes

1

Freytag v. Comm’r, 501 U.S. 868, 904 (1991) (Scalia, J., dissenting) (citations omitted).

2

U.S. Const. art. I, § 6, cl. 2. As the Clause forbids appointment during the time for which the Member was elected—even if that person is no longer a Member—resignation of one’s congressional seat to take the other office does not cure the Ineligibility Clause violation. See Appointment to Civil Office, 17 Op. Att’ys Gen. 365, 366 (1882).

3

Judges—Members of Cong.—Const. Restriction on Appointment (Article I, § 6, cl. 2) Omnibus Judgeship Bill, 2 Op. O.L.C. 431 (1978).

4

Joseph Story, Commentaries on the Constitution of the United States § 864 (1833).

5

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 219 (1974) (noting that Ex parte Levitt was “the only other occasion” where the Supreme Court faced a question under the Ineligibility and Incompatibility Clauses).

6

Ex parte Levitt, 302 U.S. 633 (1937) (per curiam).

7

Act of Mar. 1, 1937, ch. 21, 50 Stat. 24. The constitutionality of Justice Black’s appointment was defended on a number of grounds, including that providing for retirement did not actually increase the emoluments of the office because Justices were already allowed to resign and continue receiving their full salary. For a discussion of these arguments, see William Baude, The Unconstitutionality of Justice Black, 98 Tex. L. Rev. 327, 333–38 (2019) and Daniel H. Pollitt, Senator/Attorney General Saxbe and the “Ineligibility Clause” of the Constitution: An Encroachment upon Separation of Powers, 53 N.C. L. Rev. 111, 123–24 (1974).

8

Ex parte Levitt, 302 U.S. at 633; see also McClure v. Carter, 513 F. Supp. 265, 270 (D. Idaho 1981) (holding that Senator lacked standing to challenge the appointment of Judge Abner Mikva based on the Ineligibility Clause), aff’d sub nom. McClure v. Reagan, 454 U.S. 1025 (1981).

9

Rodearmel v. Clinton, 666 F. Supp. 2d 123, 128–29 (D.D.C. 2009), appeal dismissed, 560 U.S. 950 (2010).

10

Const. Law—Article I, Section 6, Clause 2—Appointment of Member of Cong. to a Civ. Office, 3 Op. O.L.C. 298, 298 (1979); see also Const. Law—Article I, Section 6, Clause 2—Appointment of Member of Cong. to a Civil Office, 3 Op. O.L.C. 286 (1979).

11

Applicability of Ineligibility Clause to Appointment of Congressman Tony P. Hall, 26 Op. O.L.C. 40, 41 (2002).

12

Nomination of Sitting Member of Cong. to be Ambassador to Vietnam, 20 Op. O.L.C. 284, 284 (1996).

13

Statutory Rollback of Salary to Permit Appointment of Member of Cong. to Exec. Office, 33 Op. O.L.C. 201, 202 (2009) (noting that Executive Branch “has not yet come to rest on a conclusion” as to whether the Saxbe fix complies with the Ineligibility Clause). Although the “fix” is named for its use in 1973 when President Nixon appointed Senator William Saxbe as his Attorney General, the first prominent usage was in 1903, when Congress reduced the compensation of the Secretary of State to allow President Taft to appoint Senator Philander Knox to that office. See generally John F. O’Connor, The Emoluments Clause: An Anti-Federalist Intrude in a Federalist Constitution, 24 Hofstra L. Rev. 89, 122–35 (1995) (reviewing the history of the Saxbe fix).

14

See Statutory Rollback, 33 Op. O.L.C. at 201 (explaining this procedure); O’Connor, supra note 13, at 93 (same).

15

See Pollitt, supra note 7, at 111–12.

16

Pollitt, supra note 7, at 112.

17

Pollitt, supra note 7, at 112

18

Statutory Rollback, 33 Op. O.L.C. at 220. For contrary views, see Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907, 907–11 (1994); O’Connor, supra note 13, at 135–46; and Memorandum for the Counselor to the Attorney General, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, Re: Ineligibility of Sitting Congressman to Assume a Vacancy on the Supreme Court (Aug. 24, 1987).