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.

Guest Essayist: Steven H. Aden, Senior Counsel, Alliance Defense Fund

Article I, Section 6, Clause 2

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.

Philander Knox, Dick Nixon and the Saxbe Fix.  For some quizzical reason, “X” marks the spot in the constitutional text where a tempest of teapot proportions persistently brews when Section 6 nixes Executive picks.

The pedestrian second clause of Section 6 provides two obscure but important checks on the power of both the Executive and the Legislative Branch, colloquially known as the  “Emoluments Clause” and the “Incompatibility Clause,” respectively.  The second clause is as crystalline in meaning as a constitutional text can be, and has engendered virtually no historical dispute, except occasional quibbles over whether a trusteeship or a military commission constituted an “Office” for purposes of the clause.  President George Washington and other Founders regarded the Incompatability Clause as an unbreachable bar to cabinet service.  Washington withdrew his nomination of William Patterson to the Supreme Court because Patterson had been a senator when the office of Associate Justice was created and the Senate term Patterson had been elected for had not expired.  (Washington got his man nonetheless by subsequently re-nominating Patterson to the Court after his term expired.)  Since then, the Incompatibility Clause has been largely respected, with an occasional deviation.

The Emoluments Clause, on the other hand, has been much abused and misused. The Clause, which applies when Congress has voted to raise the salary or benefits (“emoluments”) attending the cabinet position during the nominated member’s tenure in Congress, was regarded by James Madison and others as an important check on potential collusion over cabinet appointments between the two “most dangerous” branches.  The clause would prevent the President from creating new cabinet positions for sitting members of Congress, thereby inhibiting vote-buying, and prevent Congress from raising the salary of a newly appointed cabinet minister as he or she is on the way out the door, inhibiting graft.  The Emoluments Clause is a “pox on both their houses,” in contrast to most of the other constitutional checks and balances that operate on a single branch of the federal government.

Philander C. Knox enters the story about a century ago, when President William Howard Taft in 1909 nominated Senator Knox to the post of Secretary of State.  But Knox had been elected to a Senate term that would not expire until 1911, and during his term Congress had voted to increase the salary of cabinet officers to $12,000 annually.  After much deliberation, Congress voted to revert the salary of the Secretary of State to $8,000, and Knox took office.

What could have been known as the “Knox Fix” (if that era had been as inclined to Seussian alliteratives as ours is) was employed by the administration of President Richard Nixon in 1973 in support of the nomination of Senator William Saxbe as Attorney General.  Nixon’s Acting Solicitor General, Robert Bork, defended the proposed “Saxbe fix” before Congress by arguing that the spirit of the Emoluments Clause would be met, if not the letter:

The purpose of the constitutional provision is clearly met if the salary of an office is lowered after having been raised during the Senator’s or Representative’s term of office…. So, with the bill lowering the salary of the office of Attorney General [from $60,000] to that level, $35,000, which it stood when Senator Saxbe became a Senator, you would have a situation where the rationale of the constitutional provision was met.[1]

This rather cynical interpretation of the Emoluments Clause has become au courant among Beltway sophisticates, and it is routinely invoked when the clause pops up like an uninvited uncle at Thanksgiving.  President William Clinton, for example, invoked The Fix to appoint Senator Lloyd Bentsen as Treasury Secretary.    Constitutional law professor Michael Stokes Paulsen explains how the “purpose” of the clause has vaulted over the actual rule it imposes:

By repealing the pay increase, the statute ensures that Lloyd Bentsen is not the personal financial beneficiary of any increase in emoluments.  But the statute cannot repeal history; it cannot undo the fact that the emoluments of the office had been “encreased” during the period for which Bentsen had been elected to the Senate.  And that is the constitutional rule provided by the Emoluments Clause.  Congress can no more legislate away a violation of that rule than it can by statute raise the chronological age of a thirty-two-year-old in order to make him eligible to serve as President.  Bentsen’s appointment is unconstitutional regardless of the subsequent legislative “fix.”[2]

Thus, as with many of those pesky “minor” constitutional provisions, the Emoluments Clause has been “more honour’d in the breach than the observance.”[3]     Musing about the apparent flexibility of this provision and similar castaways of “our Living Constitution,” Professor Michael Stokes Paulsen muses, “What gives?  The answer is that the Constitution gives, at least most of the time, when the provision involved is one that people today regard as a nuisance and where the likelihood appears small that a lawsuit will be brought against the violators.”[4]   Still, one has to say that the clause has had a salutary effect on the separation of presidential and legislative powers by hitting those who breach it where it hurts career politicians the most – right in their wallets, in the form of a pay cut.  Its letter may be dead, but its spirit is still kicking.

Steven H. Aden is the Senior Counsel for the Alliance Defense Fund, .

[1]              Letter from President Richard M. Nixon to Senator Gale McGee (Nov. 8, 1973), in To Insure that the Compensation and Other Emoluments Attached to the Office of Att’y Gen. Are Those Which Were in Effect on January 1st, 1969, Hearings on S. 26733 Before the Senate Comm. on Post Office and Civil Service, 93rd Cong., 1st Sess. 6 (1973) id. at 9 (testimony of Acting Attorney General Robert H. Bork).

[2]              Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907, at 909 (April 1994).  Professor Paulsen observes that the “other” Emoluments Clause, in Article I, Section 9, provides that “no Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State,” thus demonstrating that “where the framers intended that a disability be removable by subsequent legislation, they so specified….”  Id., at 909 n.6.

[3]           William Shakespeare, Hamlet Act I Scene 4.

[4]             Paulsen, supra, n.2, at 907-08.  In fact lawsuits have been brought to enforce the Emoluments Clause, notably challenging President Jimmy Carter’s nomination of Abner Mikva to the D.C. Circuit Court of Appeals and President Obama’s nomination of Senator Hillary Clinton as Secretary of State, but the courts have dismissed those bringing the challenges as lacking standing – the legal authority to bring a court suit.