Clinton's eligibility, redux

In a post last week, I suggested that the ineligibility clause may bar the appointment of Hillary Clinton as Secretary of State. Clinton was last elected to the Senate in 2006; if the pay of the Secretary of State has been increased in the last two years, it is a civil office under the authority of the United States, the emoluments of which have been increased during the time for which Clinton was elected, making her ineligible to be appointed to it under Article I § 6.1

Maryland Conservatarian now provides the missing link: the emoluments of the Secretary of State have increased during Clinton's term. At very least, the salary has risen from $183,500 in 2006 to $191,300 in 2008; even if this is a COLA increase, it still counts, as my previous post explains. This would seem to shut the door on Clinton, and on John Kerry, whose name has also been floated.

Conceivably, the Obama DoJ could resurrect the Saxbe fix, whereby the pay and emoluments of the office would be rolled back to their pre-2006 levels (it's not clear whether they would have to roll back to pre-2000 levels). But that approach "dilute[s]" the Constitution's protections,2 "'smacks of clever manipulation,'"3 and is in tension with both the clause's "text and its apparent purpose. ... [R]escinding 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."4

The President will be the primary defender of the ineligibility clause in this instance. The courts are, so to speak, benched: Ex Parte Levitt 5 (challenging the appointment of Hugo Black to the Supreme Court) and McClure v. Carter 6 (challenging the appointment of Abner Mikva to the D.C. Circuit) illustrate the difficulty of finding a plaintiff with standing to challenge an appointment. And the Senate, full of ambitious men who would themselves like to benefit from the Saxbe fix, cannot realistically be expected to reject Clinton's nomination should Obama send it to them. It falls, then, to President Obama to exercise self-restraint in service of the Constitution; does he - the soi-disant Constitutional law professor - really want one of his first acts in office to be breaking, or at least artfully bending, the Constitution to get his way? It would be an inauspicious start.

In the comments: Rafique comes up with a good metaphor: Knox-Saxbe "amounts to rolling back the odometer after one has crossed the line." I like that.

Added: discussing this further with some folks, a concern arises, and a possible answer emerges to those concerns. The concern is this: The increases that MC noted are almost certainly the product of the Commission, not the product of a statute that Clinton herself voted on. That distinguishes this case from all the cases cited above. And yet this case is still within the four corners of the text. So what's going on here?

When the framers wrote, they knew that any office under the United States would be paid from the treasury of the United States, and they provided that moneys could only be drawn to the extent appropriated by statute. I think we can infer that they would have assumed -- that is, it must be a presupposition of the ineligibility clause (and the framers' presuppositions are not wholly without force, see, e.g., Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991); Principality of Monaco v. Mississippi, 292 U.S. 313, 322 (1934) ("Behind the words of the constitutional provisions are postulates which limit and control")) -- that the increase in emoluments they had in mind could only be a result of a statute, on which the affected Senator (or Congressman) would have had the opportunity to vote. Setting aside nondelegation problems, what happens when that presupposition no longer holds - say, because Congress has delegated pay-setting authority to an executive branch entity?

Put another way, does this presupposition extratextually contract the plain text of the clause such that only increases in emoluments that result from a statute voted on by a member of Congress operate as a bar to appointment? One way around this that was suggested to me: perhaps merely voting on the federal budget suffices to bar Clinton. I need to think more about that, but my instinct is that the reasoning would seem overinclusive.

And: Update: more from me on this issue here and here.

Post facto:
Obama's appointments (11/21/08)

1. 1. Cf., e.g., the OLC's memorandum of May 30, 2002 (a member of Congress could be appointed to an office because it had no fixed emoluments, but the stated predicate of the opinion was that if the office had had emoluments, and if they had been increased during the member's tenure in office, the member would be ineligible under the ineligibility clause); 2 Decisions of the Comptroller of the Treasury 135 (1896) (appointment of Senator Ransom as Minister to Mexico before the expiry of his Senate term, when the salary thereof had been increased during Ransom's term, violated the ineligibility clause). Nor can Senator Clinton cure this disability through resignation, see 17 Op. Attorney General 365 (1881) (concluding that former Senator Kirkwood, who had resigned, was ineligible to be appointed to an office created by Congress after his resignation but during the term to which he had been elected); 12 Law Notes 222 (1909) (same); OLC memorandum of July 26, 1996, n.2 (collecting opinions and reaffirming same).
2. 2. Adrian Vermeule, Veil of Ignorance Rules in Constitutional Law, 111 Yale L.J. 399, 423 n.75 (2001).
3. 3. Mark Tushnet, Taking the Constitution Away from the Courts 35 (2000).
4. 4. Id. at 34 (footnote omitted); see also Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907 (1994). The argument from purpose is weaker than that from text. The purpose of the clause is evidently to forestall corruption: without it, "not only would legislators have the power to vote on the existence or perquisites of offices they would be eligible to fill, but they could strike collusive deals with the President, distorting policy in other areas in order to obtain a presidential promise of future appointment to a new or enhanced office." Vermeule, supra, at 422; accord 2 Joseph Story, Commentaries on the Constitution of the United States § 864 (1833). To be sure, the purpose of a clause is a useful device in construing how far it reaches beyond the four corners of its text, but as Alexander Hamilton well said in 1791, "whatever may have been the intention of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction. Nothing is more common than for laws to express and elect more or less than was intended."
5. 5. 302 U.S. 633 (1937).
6. 6. 513 F.Supp. 265 (D. Idaho 1981), aff'd sub. nom. McClure v. Reagan, 545 U.S. 1025 (1981).