Clinton's eligibility, III

In posts here and here, I've discussed the problem posed by Article I § 6 to appointing Hillary Clinton as Secretary of state. The gist of the matter is that the Constitution provides that "[n]o Senator ... shall, during the time for which [s]he was elected, be appointed to any civil office under the authority of the United States ... the emoluments whereof shall have been increased during such time." Clinton's situation fits squarely within the four corners of that language, notwithstanding some conceptual problems discussed in my earlier posts (for example, it does not matter that Clinton did not herself vote for the salary increase.1).

The WaPo has finally woken up, and interest in the blogosphere has become bipartisan. Prof. Calvin Massey at the Faculty Lounge contemplates the purpose of the clause in a post here. (Massey's conlaw casebook is highly reccomended, by the way.) Prof. Howard Wasserman at Prawfs has a post that deals with a somewhat different subject, but which raises another interesting point: Prior to the Seventeenth Amendment, it would have been much easier for Senators to move back into the Senate after serving in the executive branch. In that environment, the kind of rent-seeking behavior that the ineligibility clause seeks to forestall is more likely, because the opportunity cost for Senators is lower. (That doesn't change the text, but it's interesting to note.)

AdamB at Daily Kos chips in several useful points. He offers further evidence of the clause's purpose from Madison's notes; I generally eschew reliance on the drafting history of the Constitution for reasons discussed in this post, but it's good to have, because some people place more weight on them than I. He has evidence that liberals including Robert Byrd and the New York Times were opposed the Saxbe fix at the time. He supplements the executive pay tables found by Maryland Conservatarian (linked in my previous post) with this executive order increasing executive branch salaries, which seems to confirm that the source of the increase was not statutory. And he points to this OLC memo taking the natural reading of the clause as not applying when the increases happened in prior terms for which a person was elected, nor if they are appointed subsequent to the expiry of their term, neither of which helps Clinton.2

My difference with Adam, Calvin and the WaPo is in their apparent belief that the problem can be fixed by Congress. Although they can point to Knox-Saxbe as precedent, I am not convinced. I continue to agree with Prof. Mark Tushnet, whom I quoted in a previous post: "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." Although Prof. Paulson has developed the argument in greater detail,3 it's tough to beat Tushnet's line in terms of the sheer force and concision with which his argument lays waste to the opposition. Even the WaPo puts down the water for long enough to note that Knox-Saxbe is "a controversial, somewhat tortured reading" of the Constitution, but hastily picks itself up, dusts itself down, derisively referring to the Constitution as "the Sacred Document" as if adherence to what it provides is somehow inappropriate - echoes of our "inconvenient Constitution."4

It could be argued that Clinton is in the periphery of the clause's restriction. After all, unlike Kirkwood in 1881, Ransom in 1896, Knox in 1909, Black in 1937, Saxbe in 1973, Mikva in 1981, and Hatch in 1987, Clinton did not vote on a statute raising the emoluments of the office. She is thus in a perverse position: she may be on the periphery of the clause's purposes, but she is squarely within its text, which clearly states: "No Senator ... shall, during the time for which [s]he was elected, be appointed to any civil office under the authority of the United States ... the emoluments whereof shall have been increased during such time." To allow Clinton's appointment would require a chain of reasoning worryingly similar to that castigated by Justice Scalia (joined by Justices Brennan, Marshall and Stevens) in Maryland v. Craig: it would abstract from the prohibition to its purpose, conclude that Clinton's appointment does not offend the purpose, and then bypass the prohibition. This just won't do. The Constitution is law; the law is what the law says, and what that text fairly imports.5 Although I'm a textualist, I do acknowledge that the text is sometimes ambiguous, and in those circumstances, I agree with the Legal Process school to the following extent. Law is a purposive act, so, ceteris paribus, when the text is ambiguous we should determine what purpose(s) can be attributed to a clause, and interpret it so as to carry out that purpose so long as we don't give it a meaning that its words will not bear.6 Here, however, the clause is crystal clear; overinclusiveness is not ambiguity. The Supreme Court allows some leeway to read a text narrowly rather than literally when the latter "would thwart the obvious purpose" of a provision,7 but while there may or may not be good arguments against reading the clause so as to exclude members of Congress from a broader rather than narrower class of offices, it cannot be said that it thwarts the purpose of the clause to do so.

Even President Clinton's Justice Department conceded that "[t]he tradition of interpreting the [Ineligibility] Clause has been formalistic rather than functional" (internal quotation marks omitted). That a restriction is inefficient, inconvenient, and makes certain functions of government more difficult, does not make it any less mandatory a part of the Constitution.8

There is no support in the Constitution or decisions of this Court for the proposition that the cumbersomeness and delays often encountered in complying with explicit constitutional standards may be avoided, either by the Congress or by the President. With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.9

"There is an enormous temptation to chisel at the margins of the Constitution,"10 to excuse a little give here and a little give there. And under the cover of ambiguous language, that may sometimes be reasonable. Nevertheless, Justice Douglas is attributed the warning that "[a]s nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air — however slight — lest we become unwitting victims of the darkness." We would do well to consider that. We would also to well to consider that the lesson of Levitt and McClure is that it is difficult to find someone with standing to challenge this kind of violation - but, as Paulson notes,11 not impossible.

Update: more from me on this here.

Post facto:
Wyeth v. Levine (3/4/2009)

1. 1. Cf. Michael Stokes Paulson, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907, 908 (1994)
2. 2. Not until 1/3/2013, at any rate.
3. 3. Op. cit n.1.
4. 4. Paulson, supra, at 908, 914.
5. 5. See Bank One Chicago v. Midwest Bank & Trust Co., 516 U.S. 264, 279 (1996) (Scalia, J., concurring); Frank Easterbrook, Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119, 1120 (1988) ("the judicial branch serves best by enforcing enacted words rather than unenacted (more likely, imagined) intents, purposes, and wills").
6. 6. See Hart & Sacks, The Legal Process 1124, 1169 (Eskridge & Frickey, eds. 1994); accord State ex rel. Kalal v. Circuit Court, 681 N.W. 2d 110 (Wis. 2004) (per Sykes, J.) ("scope, context, and purpose are perfectly relevant to a plain-meaning interpretation of an unambiguous statute as long as the scope, context, and purpose are ascertainable from the text and structure of the statute itself, rather than extrinsic sources").
7. 7. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982) (quoting cases).
8. 8. Cf. INS v. Chadha, 462 U.S. 919, 944 (1983).
9. 9. Id. at 959 (citation omitted).
10. 10. Paulson, supra, at 916.
11. 11. Paulson, supra, at 916-7.