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 have been
encreased during such time. . . .
--U.S. Constitution, Article I,
Section 6, Clause 2
Determined to avoid corruption and self-dealing in the
legislative process, the Framers kept all appointive powers out of
the hands of Congress. (See Article II, Section 2, Clause
2.) But corruption could come not only from self-dealing but also
from the blandishments of the executive. Consequently, in order to
prevent a repetition of the British Crown's practice of "buying"
support by creating offices and sinecures to give to members of
Parliament, Robert Yates proposed to the Constitutional Convention
a ban on Members of Congress from "any office established by a
particular State, or under the authority of the U. States . . .
during the term of service, and under the national Government for
the space of one year after its expiration."
All the delegates in Philadelphia agreed that no Member of
Congress should serve in an appointive position while he was
sitting, but Nathaniel Gorham, James Wilson, and Alexander Hamilton
wanted no bar at all, once a person was no longer in Congress.
Hamilton argued that since passion drives all men, the executive
should be able to satisfy the desires of the better qualified men
by inducing them to serve in appointive offices.
James Madison proposed a solution that sought to reconcile the
divergent concerns of the Framers: "that no office ought to be open
to a member, which may be created or augmented while he is in the
legislature." For some time, the delegates debated whether this
idea was too restrictive or not restrictive enough. Madison
responded that "the unnecessary creation of offices, and increase
of salaries, were the evils most experienced, & that if the
door was shut agst. them, it might properly be left open for the
appointt. of members to other offices as an encouragmt. to the
Legislative service." Eventually, the delegates accepted Madison's
view, but they deleted the prohibition from holding state office
(the state might need the Member's services) and the one-year bar
after leaving office (it was not long enough to be of any
significant effect). They also limited the bar to "civil" offices
so that the military could have the service of all when the country
was in danger.
As adopted, the relatively limited bar of this clause reinforces
the separation of powers and the federal structure of the union. Of
the separation of powers, Madison famously wrote in The
Federalist No. 51: "Ambition must be made to counteract
ambition. The interest of the man must be connected with the
constitutional rights of the place." The clause puts an obstacle to
the President's ability to shift a Congress Member's ambition from
the legislative to the executive. Of the federal structure of the
union, Madison had warned of "the unnecessary creation of
offices"--obviously beyond what was appropriate for the central
government--that could occur if the clause were not adopted.
The clause establishes a number of formal requirements: (1) It
applies to those Members who have actually taken their seats, not
to those who were elected but not yet sworn in. (2) "Appointed"
means at the moment of nomination for civil office, not at the time
of approval. Marbury v. Madison (1803). (3) The bar cannot
be evaded by resignation from Congress. In a written opinion of
Attorney General Benjamin Brewster in 1882, the clause applies for
the term "for which he was elected," not the time during which the
member actually holds office. (4) "Civil office" is one in which
the appointee exercises an authoritative role. It does not apply to
temporary, honorific, advisory, or occasional postings. United
States v. Hartwell (1868). (5) "Emoluments" means more
than salary, McLean v. United States (1912), but it is
unclear how much more. In 1937, the Senate approved the appointment
of Hugo L. Black to the Supreme Court even though Congress had
passed legislation significantly augmenting the pensions of Supreme
Court justices during the Senate term in which Black served. Later,
under Presidents Lyndon B. Johnson and James Earl Carter, the
Department of Justice opined 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. The courts have dismissed suits
contesting the appointments of Justice Hugo L. Black and Judge
Abner Mikva on lack of standing grounds. Ex parte Levitt
(1937); McClure v. Carter (1981).
In his Commentaries on the Constitution of the United
States, Justice Joseph Story, even in his panegyric, was
hesitant about the clause: "It has been deemed by one commentator
as admirable provision against venality, though not perhaps
sufficiently guarded to prevent evasion." For well over a century,
Presidents and their attorneys general had rigorously followed the
formal requirements of the clause. In 1973, however, Congress and
the executive devised an effective stratagem to avoid the
limitations of the clause. Termed the "Saxbe fix," it copied an
idea invented during the Taft administration. President Richard M.
Nixon appointed Senator William Saxbe to be Attorney General even
though Saxbe had been a Senator when Congress raised the Attorney
General's salary from $35,000 to $60,000.Under an opinion from
acting Attorney General Robert H. Bork, the Congress "fixed" the
violation of the clause by returning the Attorney General's salary
to the $35,000 level.
Presidents Gerald R. Ford, Carter (appointing Senator Edmund
Muskie as Secretary of State), and William Jefferson Clinton
(appointing Senator Lloyd Bentsen as Secretary of the Treasury)
went further and utilized "temporary Saxbe fixes," persuading
Congress to reduce the salary of a position to which a Member had
been appointed but only until the date when the Member's term would
have ended. Only under Attorney General Edwin Meese III did the
Department of Justice eschew this end run around the formal
requirements of the Sinecure Clause. In 1987, the Office of Legal
Counsel issued an opinion that Senator Orrin Hatch would be
ineligible for nomination to the Supreme Court because Congress had
raised the salaries for Associate Justices during Hatch's term.
President Ronald Reagan chose to nominate Judge Robert H. Bork,
whom the Senate did not approve.
Justice Joseph Story had also written, "It has sometimes been a
matter of regret, that the disqualification had not been made
co-extensive with the supposed mischief; and thus to have for ever
excluded members from the possession of offices created, or
rendered more lucrative, by themselves." Yet he still adds
ambivalently: "Perhaps there is quite as much wisdom in leaving the
provision, where it now is." The upshot is that fidelity to the
Constitution by any of the branches of the government is as much a
function of internal commitment as it is of external
constraint.
David F. Forte is the Charles R. Emrick, Jr. - Calfee,
Halter & Griswold Professor of Law at Cleveland State
University. He is Senior Editor of The Heritage Guide to the
Constitution, a clause-by-clause analysis of the Constitution
of the United States, from which this selection is taken.
See Also
Article II, Section 2, Clause 2 (Appointments Clause)
Suggestions for Further Research
3 Op. Off. Legal Counsel 286 (1979)
17 Op. Att'y Gen. 365 (1882)
33 Op. Att'y Gen. 88 (1922)
42 Op. Att'y Gen. 381 (1969)
John F. O'Connor, The Emoluments Clause: An Anti Federalist
Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89
(1995)
Michael S. Paulsen, Is Lloyd Bentsen Unconstitutional?,
46 Stan. L. Rev. 907 (1994)
Significant Cases
Marbury v.Madison, 5 U.S. (1 Cranch) 137 (1803)
United States v.Hartwell, 73 U.S. (6 Wall.) 385 (1868)
McLean v. United States, 226 U.S. 374 (1912)
Ex parte Levitt, 302 U.S. 633 (1937)
McClure v. Carter, 513 F. Supp. 265 (D.C. Idaho
1981), aff 'd, 454 U.S. 1025 (1981)