                VALIDITY OF STATUTORY ROLLBACKS
      AS A MEANS OF COMPLYING WITH THE INELIGIBILITY CLAUSE

         Where a salary increase for an executive office would otherwise create a bar to appointment of a
member of Congress under the Ineligibility Clause, compliance with the Clause can be achieved by
legislation rolling back the salary of the office before the appointment.

                                                               May 20, 2009

                 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

        We recently have reconsidered the question whether legislation to roll back a salary
increase for an executive office can ensure compliance with the Ineligibility Clause of the
Constitution if such a rollback occurs before a Senator or Representative is appointed to the
office. The Ineligibility Clause provides that “[n]o 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.” U.S. Const. art. I, § 6, cl. 2. Rollback legislation lowers the salary
of an office to the level at which it stood before Congress enacted the increase that would
otherwise prohibit the appointment of a Senator or Representative. A 1987 opinion of this Office
took the position that such a law, if passed before the nomination1 of a Senator or Representative
to an office, would not achieve compliance with the Ineligibility Clause. See 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) (“Cooper Memorandum”).* That opinion was not in accord with
the prior interpretations of this Clause by the Department of Justice and has not consistently
guided subsequent practice of the Executive Branch. For the reasons set forth below, we do not
believe it reflects the best reading of the Ineligibility Clause.

                                                          I.

        The Ineligibility Clause prohibits the appointment of a Senator or Representative to an
“Office . . . which shall have been created, or the Emoluments whereof shall have been
encreased” during “the Time for which [the appointee] was elected [to the Congress].” U.S.
Const. art. I, § 6, cl. 2. As a linguistic matter, the words of the Clause suggest two possible
interpretations of the phrase “shall have been encreased.” Under the first interpretation, “shall
have been encreased” means “shall have ever been encreased.” The Clause thus would call for a
series of “snapshots”: if at any time during the term of a member of Congress the emoluments of
an office are higher than at another time, the emoluments have “encreased” during the member’s

         1
           President Washington withdrew the nomination of William Patterson to the Supreme Court in 1793 when
it appeared Patterson’s appointment would violate the Ineligibility Clause. 32 The Writings of George Washington
362 (John C. Fitzpatrick ed., 1939). The Patterson episode established a practice of Presidents not making
nominations unless and until any Ineligibility Clause restrictions are eliminated. See Office of the Attorney General:
Hearing on S. 2673 Before the S. Comm. on Post Office and Civil Service, 93d Cong. 9 (1973) (statement of Robert
H. Bork, Acting Attorney General of the United States); Appointment to Civil Office, 17 Op. Att’y Gen. 522 (1883).
         *
             Editor’s Note: A copy of the Cooper Memorandum is appended to this opinion.
                         Opinions of the Office of Legal Counsel in Volume 33

congressional term, and therefore the member may not be appointed to that office. Under this
interpretation, even if a salary is rolled back before the appointment, it still has been “encreased”
within the meaning of the Clause. The alternative interpretation is to read “shall have been
encreased during such time” as “shall have been encreased on net during such time,” thereby
prohibiting the appointment of a congressional member to an office only when the emoluments
of the office are greater at the time of appointment than they were at the start of the member’s
term.

        There is a long history of Executive Branch consideration of which of these
interpretations is better, and the Executive Branch has not yet come to rest on a conclusion. For
the most part, however, the Executive Branch’s interpretations have supported the effectiveness
of statutory rollbacks to comply with the Ineligibility Clause, and thus they have adopted, at least
implicitly, the “on net” interpretation.

        When Congress was considering a bill to roll back the Secretary of State’s salary in 1909
in order to permit the appointment of Senator Philander C. Knox, Assistant Attorney General
Charles W. Russell gave an “unofficial opinion,” published in the Congressional Record, that
“the purpose, and the sole purpose of [the Ineligibility Clause] was to destroy the expectation a
Representative or Senator might have that he would enjoy the newly created office or the newly
created emoluments,” and that if a salary increase “is made and then unmade, he can not get, or
hope for, anything more than if there had been no such increase.” 43 Cong. Rec. 2402, 2403
(1909) (citations omitted). Russell thus concluded that passage of the bill would permit the
appointment to be made.

        In 1973, Robert H. Bork, the Acting Attorney General, and Robert G. Dixon, the
Assistant Attorney General for the Office of Legal Counsel, testified in favor of a rollback of the
Attorney General’s salary that was intended to permit the appointment of Senator William B.
Saxbe as Attorney General, the salary for which office had been increased during the Senator’s
term in Congress. Acting Attorney General Bork stated that the rollback legislation “should
remove any constitutional question which may be raised concerning the appointment of Senator
Saxbe to be Attorney General of the United States.” Office of the Attorney General: Hearing on
S. 2673 Before the S. Comm. on Post Office and Civil Service, 93d Cong. 11 (1973) (statement of
Robert H. Bork, Acting Attorney General of the United States) (“Bork Statement”). He reasoned
that, with regard to the Ineligibility Clause, “the rationale of the constitutional provision [would
be] met because the expectation of a higher salary cannot influence Senators’ or Representatives’
votes on legislation to raise salaries . . . if a Senator or Representative knows . . . that should he
ever be nominated for [an office with a raised salary] during his term of office, he will have to
accept the lower salary.” Id. Assistant Attorney General Dixon made a similar argument.
To Reduce the Compensation of the Office of Attorney General: Hearing on S. 2673 Before
the S. Comm. on the Judiciary, 93d Cong. 71, 75 (1973) (statement of Robert G. Dixon, Jr.,
Assistant Attorney General, Office of Legal Counsel) (“Dixon Statement”) (“[The proposed
rollback legislation] would overcome the . . . evil regarding emoluments by preventing Senator
Saxbe from obtaining the benefit of the 1969 salary increase . . . without wastefully barring him
from offering his services to the country in an appointive office.”).




                                                  2
            Validity of Statutory Rollbacks as a Means of Complying with the Ineligibility Clause

        In 1979, our Office again took this position. Although we concluded that the Ineligibility
Clause did not apply where a salary increase might take place after Representative Abner
Mikva’s appointment to the Court of Appeals, we noted that “even if a salary increase for
Federal judges generally were to occur, Congress could, by legislation, exempt from coverage
the office to which Representative Mikva may be appointed.” Constitutional Law—Article I,
Section 6, Clause 2—Appointment of Member of Congress to a Civil Office, 3 Op. O.L.C. 286,
289 (1979); accord Constitutional Law—Article I, Section 6, Clause 2—Appointment of Member
of Congress to a Civil Office, 3 Op. O.L.C. 298 (1979). We cited the examples of Philander
Knox and William Saxbe. 3 Op. O.L.C. at 289-90.

        In addition to those public statements endorsing the constitutional efficacy of rollback
legislation, various unpublished memoranda of our Office before 1987 expressed the same view.
In these memoranda, we noted the possible constitutional questions about the effectiveness of
salary rollbacks but advised that such rollbacks would achieve compliance with the Ineligibility
Clause. In 1969, then-Assistant Attorney General William H. Rehnquist stated that the argument
for the constitutionality of an appointment after a rollback was “perfectly tenable,” even though,
in his view, the Ineligibility Clause would be “literally violated.” Memorandum for the
Honorable Bryce N. Harlow, from William H. Rehnquist, Assistant Attorney General, Office
of Legal Counsel, Re: Statutory Language to Avoid Prohibition of Article I, Section 6, United
States Constitution at 2 (Nov. 24, 1969).2 And in 1980 we advised that legislation to lower the
salary of the Secretary of State would permit the appointment of Senator Edmund Muskie to that
position. Memorandum for Alan A. Parker, from Larry L. Simms, Deputy Assistant Attorney
General, Office of Legal Counsel, Re: Enrolled bill, “To ensure that the compensation and
other emoluments attached to the office of Secretary of State are those which were in effect
January 1, 1977” (S. 2637) (May 8, 1980).

         However, in an unpublished opinion written in 1987, this Office reversed course and
concluded that salary rollbacks do not satisfy the Ineligibility Clause, thus adopting the
“snapshot” interpretation of the Clause. See Cooper Memorandum at 2.3 The 1987 opinion
argued that the contrary view “simply ignores the plain language of the Ineligibility Clause.”
Id. at 6. It also argued that in light of “serious reservations about the wisdom of giving to the
executive the power to appoint legislators to lucrative and prestigious executive and judicial
offices,” the Framers had “tried to limit the instances in which the executive could offer such
enticements [as appointment to office] to legislators.” Id. Furthermore, because a rolled back
salary could be restored to the higher level immediately after the appointment, rollbacks “would

        2
           A memorandum from then-Assistant Attorney General Antonin Scalia in 1974 assumed the effectiveness
under the Ineligibility Clause of the salary rollback for Attorney General Saxbe and concluded that, although the
matter was not free from doubt, the Ineligibility Clause did not bar the same Congress in which Mr. Saxbe had
served from restoring the Attorney General’s salary to its previous level after Mr. Saxbe’s appointment.
Memorandum to Hugh M. Durham, Chief, Office of Legislative Affairs, from Antonin Scalia, Assistant Attorney
General, Office of Legal Counsel, Re: Proposed Bill to Increase the Salary of the Attorney General (Nov. 22,
1974).
        3
            An opinion of Attorney General Holmes Conrad concluded in 1895 that Senator Ransom was ineligible
under the Clause to be appointed as envoy extraordinary and minister plenipotentiary to Mexico where the salary for
that position had been increased during his term. See Member of Congress—Appointment to Office, 21 Op. Att’y
Gen. 211 (1895). However, the efficacy of rollback legislation was not at issue.



                                                        3
                           Opinions of the Office of Legal Counsel in Volume 33

largely render [the Ineligibility Clause] a nullity.” Id. at 7. Thus, the opinion reasoned, rollback
legislation would “serve[] to frustrate the intentions of the Framers” by making more such
appointments possible. Id. at 6.4 The 1987 opinion had set forth the official view of the Office.

                                                      II.

        Contrary to the conclusion of the 1987 opinion, however, we do not believe the phrase
“shall have been encreased” sets forth “plain language” that renders rollback legislation
incapable of bringing an appointment into compliance with the Ineligibility Clause. The
“snapshot” interpretation favored by the 1987 opinion is but one possible interpretation of the
text and, as a matter of plain language, there is no basis for concluding that it is superior to the
“on net” reading that opinion failed to credit.

        The “on net” construction represents an entirely natural interpretation of the language.
If a potential investor asked for a prediction at the beginning of a year whether a stock index
“shall have been encreased” during the year, the question would call for a prediction whether the
index would be higher at the year’s end as compared to the year’s beginning, rather than whether
the index would go up at any point during that year, as it inevitably would on numerous
occasions every day. Congressman Marlin Olmsted made this point in the debates relating to
Senator Knox, noting that:

        even the letter [of the Ineligibility Clause], fairly interpreted, would not apply to
        this case. After this act is passed it can not be said that the salary of the Secretary
        of State has been increased, for the salary will then be precisely the same as it had
        existed for many years prior to the senatorial term which any member of that body
        was serving in 1907 [when the act to be rolled back was passed].

43 Cong. Rec. 2411 (1909).

        This reading also accords with the usage of the word “increased” around the period in
which the Clause was enacted. For example, in a report to Congress shortly after the founding,
an organization of manufacturers noted that “[t]he value of goods manufactured in the United
States . . . amounted, as early as 1810, to upwards of one hundred and seventy-two millions of
dollars, which value was very greatly increased during the late war.” 36 Annals of Cong. 2288
(1819). Such an observation cannot be understood to mean that at one time during the period
concerned the value of the goods had increased, but that the value had returned to its original,
lower level by the time of the statement. See also, e.g., Alexander Hay, The History of
Chichester 574 (West Sussex Co. & Dioscesan Record Office 1804) (noting that “[t]here is no
reason to doubt the accuracy of the survey of 1801, unless it should be suspected that it . . . was


        4
           A number of scholars who testified in 1973 on the proposed rollback legislation reached the same
conclusion as the 1987 opinion. See, e.g., To Reduce the Compensation of the Office of Attorney General: Hearing
on S. 2673 Before the S. Comm. on the Judiciary, 93d Cong. (1973) (statements of Philip Kurland, William F.
Swindler, Paul J. Mishkin, and William D. Lorenson). Other commentators have taken the same view. See, e.g.,
1 Westel Woodbury Willoughby, The Constitutional Law of the United States 607 (1929); Michael Stokes Paulsen,
Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907 (1994).



                                                       4
            Validity of Statutory Rollbacks as a Means of Complying with the Ineligibility Clause

taken at the desire of the ministery . . . that the population of the kingdom should appear
increased, and not diminished, after a long destructive war”).

        We need not conclude, however, that the “on net” interpretation is, as a matter of the
plain language, superior to the “snapshot” interpretation. The possibility of these two reasonable
constructions shows that, at a minimum, there is no definitive “plain meaning” of the Ineligibility
Clause and thus that the text standing alone is ambiguous. Therefore, we must look to evidence
of the understandings of the drafters and ratifiers of the Constitution, the purposes of the Clause,
and the practice of the political branches in construing and applying that Clause.5

                                                        III.

        In his treatise on the Constitution, Joseph Story wrote that:

        [t]he reasons for excluding persons from offices, who have been concerned in
        creating them, or increasing their emoluments, are, to take away, as far as
        possible, any improper bias in the vote of the representative, and to secure to the
        constituents some solemn pledge of his disinterestedness. The actual provision,
        however, does not go to the extent of the principle; for his appointment is
        restricted only ‘during the time, for which he was elected;’ thus leaving in full
        force every influence upon his mind, if the period of his election is short, or the
        duration of it is approaching its natural termination.

Joseph Story, Commentaries on the Constitution of the United States § 440, at 311 (Ronald D.
Rotunda & John E. Nowak eds., 1987). In other words, Justice Story did not read the Clause as
if it were intended to prevent members of Congress from receiving Executive Branch
appointments. Rather, he understood it to have been designed to guard against the particular
problems that the prospect of such executive appointments might raise. This more qualified
understanding of the Clause’s purpose finds support in the debates at the Constitutional
Convention, and we believe it supplies the correct basis for construing the Ineligibility Clause
and applying its restriction on conferring “emoluments” to the issue here.

        The Convention considered a number of variations with respect to the Ineligibility
Clause. Under the earliest version, as set out in the Virginia Plan’s fourth and fifth resolutions,
members of Congress would have been “ineligible to any office” under the authority of the
United States during their term of election and for some time thereafter, whether or not the office
in question had been created, or its emoluments increased, during the legislator’s term. 1 The
Records of the Federal Convention of 1787, at 20 (Max Farrand ed., rev. ed. 1966). In contrast,
a proposal offered by Nathaniel Ghorum of Massachusetts would have eliminated the
Ineligibility Clause altogether. Id. at 375. This proposal reflected the concern that a bar on the

        5
            In concluding that Senator Kirkwood was ineligible to be appointed to the office of tariff commissioner,
an opinion of Attorney General Benjamin Harris Brewster stated that “[i]t is unnecessary to consider the question of
policy which occasioned this constitutional prohibition.” Appointment to Civil Office, 17 Op. Att’y Gen. 365, 366
(1882). Senator Kirkwood, however, was barred from appointment under the Ineligibility Clause because the office
unquestionably was “created” during his term as Senator. Therefore, there was no ambiguity in the plain text giving
rise to a need to examine the purposes behind the restriction.



                                                         5
                            Opinions of the Office of Legal Counsel in Volume 33

appointment of members of Congress to other offices would limit the number of capable persons
who could serve in government. See id. at 376. For example, James Wilson stated that “[s]trong
reasons must induce me to disqualify a good man from office,” id. at 379, and that “we ought to
hold forth every honorable inducement for men of abilities to enter the service of the public,” id.
at 380. Alexander Hamilton made the additional argument that the Executive would need the
power to appoint Senators and Representatives to high office: “Our prevailing passions are
ambition and interest,” Hamilton observed, and the executive might have to “avail himself of
those passions” to induce the legislature to act for “the public good.” Id. at 381.

        Between these two extremes—one which would have established a categorical bar
against any sitting member of Congress’s appointment to executive office and another which
would have placed no restrictions on such appointments at all—James Madison argued for a
“middle ground between an eligibility in all cases, and an absolute disqualification.” Id. at 388.
Although Madison opposed the severity of the Virginia Plan’s provisions, he conceded that there
were instances in which the appointment of a member of Congress to another office would be
undesirable. Without some form of the Ineligibility Clause, “there may be danger of creating
offices or augmenting the stipends of those already created, in order to gratify some members if
they were not excluded.” Id. at 380. Appointing members of Congress to newly created offices
or to offices with recently augmented salaries “were the evils most experienced,” and Madison
supposed 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.” Id. at 386. The goal was
for “the national legislature to be as uncorrupt as possible.” Id. at 392.

         Although the version of the Clause that the Committee on Detail eventually presented to
the Convention was a modification of the broad restriction in the Virginia Plan,6 Madison’s
middle position eventually prevailed. 2 id. at 492. The aim behind the Ineligibility Clause was
thus to take away the possibility that Congress would create offices or increase emoluments in
order to “gratify” members who might then gain appointment, while preserving sufficient
eligibility for the appointment to executive office of qualified officials serving in Congress.7
In that way, the Clause would ensure that the national legislature would be “as uncorrupt as
possible.” 1 id. at 392.

       This basic purpose, as reflected in the Clause’s drafting history, helps to resolve the
ambiguity in the text. It indicates that the phrase “shall have been encreased” should be
construed to mean “shall have been encreased on net” during the course of a Congress member’s
term. The alternative, snapshot reading, while plausible linguistically, would result in the Clause

        6
          Article VI, section 9 of the draft Constitution made members of the House “ineligible to, and incapable of
holding any office under the authority of the United States” during the term for which they have been elected. 2 The
Records of the Federal Convention of 1787, at 180. This version also made Senators “ineligible to, and incapable of
holding any such office for one year afterwards.” Id.
        7
            During the ratification debates in Virginia, Madison explained that the Ineligibility Clause “guards
against abuse by taking away the inducement to create new offices, or increase the emoluments of old offices.”
10 The Documentary History of the Ratification of the Constitution 1262 (John P. Kaminski & Gaspare J. Saladino
eds., 1976-1993). But he also noted that it would be “impolitic to exclude from the service of his country, in any
office, the man who may be most capable of discharging its duties, when they are most wanting.” 3 The Records of
the Federal Convention of 1787, at 315.



                                                         6
          Validity of Statutory Rollbacks as a Means of Complying with the Ineligibility Clause

operating as a nearly categorical bar to the appointment of members of Congress, given the
likelihood of a salary increase during a member’s (and particularly a Senator’s) term. Such a
broad bar to appointment, however, is what Madison and other delegates sought to avoid by
adopting Madison’s compromise position and rejecting the complete bar to eligibility for
members of Congress that had been proposed. Madison’s compromise position, and the version
of the Clause ultimately adopted, to use Justice Story’s words, reflects the “reasons for excluding
persons from offices” rather than an intention to establish a restriction that would be untethered
to those specific reasons. As first Madison, and then Justice Story explained, those reasons
related to the concern that members of Congress would vote to establish new or higher paying
offices to “gratify” themselves as future officeholders rather than out of a disinterested judgment
about the need for such legislation.

        This understanding of the Clause’s purpose reveals the superiority of the “on net”
construction of the ambiguous textual phrase “shall have been encreased.” A member of
Congress could hardly be said to be seeking to “gratify” himself in approving legislation to
increase the salary of an office if he knew that the Clause would bar him from taking that office
unless the salary had first been rolled back prior to his appointment. As Acting Attorney General
Bork stated, “the expectation of a higher salary cannot influence Senators’ or Representatives’
votes on legislation to raise salaries . . . if a Senator or Representative knows . . . that should he
ever be nominated for [an office with a raised salary] during his term of office, he will have to
accept the lower salary.” Bork Statement at 11.

        The allowance for rollback legislation, therefore, does not violate the “plain language”
of the Clause, or otherwise frustrate its purposes, as our 1987 opinion erroneously concluded.
To the contrary, construing the Clause to permit appointments following rollback legislation
advances the purposes behind the Ineligibility Clause by “assur[ing] the appointment eligibility
of Members of Congress where there is no possibility of profit from offices created, or salaries
increased, during the time for which they were elected.” See To Reduce the Compensation of the
Office of Attorney General: Hearing on S. 2673 Before the S. Comm. on the Judiciary at 51
(Statement of William Van Alstyne) (“Van Alstyne Statement”). As Senator Philip Hart said in
the debates on the rollback legislation for William Saxbe, such a law “would not ‘evade’ the bar
intended by the Framers; rather, it would implement it and maintain its effectiveness, both in the
present instance and as a deterrent to log rolling or improper executive-legislative collaboration
in the future.” 119 Cong. Rec. 38,346 (1973). Thus, he continued,

       rather than saying [the law] permits evasion of the constitutional provision, it is
       more correct to say the ban has here served its purpose. It has forced a statute
       denying any benefit, and without the statute the ban would prevent the
       appointment. If the purpose can thus be accomplished, to do more would do
       violence to the other competing consideration in the original compromise:
       namely, Madison’s concern that good men not be precluded from executive
       service for existing posts.




                                                   7
                             Opinions of the Office of Legal Counsel in Volume 33

Id. at 38,347.8 See also Dixon Statement at 71, 81 (“A major purpose of the Ineligibility
Clause . . . was the prevention of the evils which would arise if legislators could benefit from the
creation of new offices or increase in the emoluments of existing ones . . . . S. 2673 would
overcome the former evil regarding emoluments by preventing Senator Saxbe from obtaining the
benefit of the 1969 salary increase.”). Senator Olmstead, in defending the constitutional efficacy
of the rollback legislation proposed to permit the appointment of Senator Knox, expressed the
similar view that such proposed legislation “if enacted will be not an evasion of, but in
compliance with [the Ineligibility Clause].” 43 Cong. Rec. 2410 (1909).9

        Some commentators favoring the “snapshot” interpretation have argued that, contrary to
Justice Story’s view, the predominant purpose of the Ineligibility Clause was “to protect against
legislative corruption by the executive’s appointment power” and “to prevent the offering of high
position as an inducement to legislators.” See 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, 122-23 (1974); Comment, The Ineligibility Clause: An Historical
Approach to Its Interpretation and Application, 14 John Marshall L. Rev. 819, 824 n.31, 828
(1981); but see John F. O’Connor, The Emoluments Clause: An Anti-Federalist Intruder in a
Federalist Constitution, 24 Hofstra L. Rev. 89, 164, 172-73 (1995) (arguing that the Framers did
not view this as the central purpose of the Clause). Assistant Attorney General Dixon recognized
this as a purpose of the Clause in testifying before Congress on the rollback bill introduced to
permit the appointment of Senator Saxbe as Attorney General, see Dixon Statement at 70, and
our 1987 opinion recognizes it as well, see Cooper Memorandum at 6.

        This alternative account of the purpose of the Clause does not, however, favor the
“snapshot” interpretation, and thus it does not cast doubt on the constitutional effectiveness of
rollback legislation. Even if one understands a concern about undue executive pressure on the
legislature to have influenced the delegates to the Constitutional Convention in negotiating the
Clause, the “on net” construction of “shall have been encreased” is still the superior reading.
Although there is some support in the history of the Constitutional Convention for the view that
the drafters of the Ineligibility Clause had a concern about improper executive influence through
the appointment power, the text of the Clause shows that this concern was not its overriding and
unqualified purpose. By its terms, the Clause does not prohibit the President from appointing a
sitting member of Congress to an Executive Branch office. The delegates rejected the Virginia

         8
            As Professor Van Alstyne pointed out, grants of immunity under the Fifth Amendment are analogous.
Van Alstyne Statement at 56, 66. The Fifth Amendment provides that “[n]o person . . . shall be compelled to be a
witness against himself in any criminal case.” Testimony may be compelled, however, if the witness is granted
immunity, so that the testimony cannot be used against him. 18 U.S.C. § 6002 (2006); Kastigar v. United States,
406 U.S. 441 (1972). The federal immunity statute is not an “evasion” of the Fifth Amendment. Rather, it respects
the constitutional command.
         9
            It might be argued that the text of the Ineligibility Clause precludes the effectiveness of rollback
legislation, because it does not expressly permit Congress to make exceptions, in contrast with other constitutional
provisions. For example, the Emoluments Clause states that “no Person holding any Office or Profit or Trust under
them, 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.” U.S. Const. art. I, § 9, cl. 8. Rollback legislation, however, is
not an exception to the Clause, but rather a means for ensuring that the facts that would trigger the bar are not in
place. Rollback legislation is thus more analogous to situations in which the Emoluments Clause would not apply at
all, such as when the gift comes from a foreign jurisdiction after Congress has incorporated it into the United States.



                                                          8
         Validity of Statutory Rollbacks as a Means of Complying with the Ineligibility Clause

Plan, which would have done so. In that regard, the Clause could not have been designed to root
out any possible Executive Branch use of the appointment power to influence members of
Congress. Indeed, in forging his compromise, Madison was clear in not seeking to impose such
a draconian rule. See Van Alstyne Statement at 53 (“[N]ot to recognize the efficacy of [rollback
legislation] . . . would itself offend one of the reasons that accounted for the final form of [the
Ineligibility Clause]: to assure the eligibility of Members of Congress for appointment to
vacancies in existing offices, insofar as neither the office itself nor any prerequisite associated
with that office would result to them as a consequence of any act of Congress during [their]
term.”).

        The issue, then, is whether the “snapshot” interpretation of “shall have been encreased”
would appreciably guard against the corrupting influence of executive appointments, even
though the Clause poses no general bar to the Executive offering them as inducements. We do
not see how it would. A construction of the Clause that would permit rollback legislation would
seem well-designed to check the Executive from unduly influencing congressional members with
the prospect of attractive appointments, given that appointments in general are not prohibited.
Any tangential effect that the increase in the pay of an office might otherwise have on the
President’s ability to influence Congress by promising appointment to such office would be
negated by the expectation of the enactment of rollback legislation. Thus, as with the desire to
avoid self-dealing by the legislature, conceding the efficacy of rollback legislation would
comport with this purpose of the Ineligibility Clause. See Dixon Statement at 71 (“S. 2673
would overcome the . . . evil regarding emoluments by preventing Senator Saxbe from obtaining
the benefit of the 1969 salary increase and any other emoluments, without wastefully barring him
from offering his services to the country in an appointive office.”). Or at least, the possibility of
corrupting influence would exist only insofar as it would exist in the absence of the Ineligibility
Clause altogether: by its terms, the Ineligibility Clause does not prevent Congress and the
President from colluding to make a deal in which the President would appoint a congressional
member to an office (the salary of which had never been raised during the relevant period) and
Congress would later raise the salary of that office. See 3 Op. O.L.C. at 288; Member of
Congress—Appointment to Civil Office Prior to Pay Increase, 42 Op. Att’y Gen. 381 (1969)
(concluding that subsequent increase in the emoluments of an office would not disqualify a
member from appointment to that office). We thus disagree with the 1987 opinion’s assertion
that conceding the efficacy of rollback legislation would “serve[] to frustrate the intentions of the
Framers.” Cooper Memorandum at 6.

        Finally, it has been argued that the Framers intended the Ineligibility Clause to limit the
growth of the national government, and that this purpose would be best served by denying the
effectiveness of rollback legislation. See O’Connor, supra, at 164, 170-71. According to this
argument, if rollback legislation is ineffective, Congress will be less likely to increase the pay
of offices in the first instance, because its members will want to maintain their eligibility for
appointment; as a result, the purpose of economy will be advanced more completely than if a
rollback were effective. Id. at 170-71. This argument, we believe, is mistaken and cannot be
reconciled with the text of the Ineligibility Clause. It would find in the Ineligibility Clause a
purpose to restrict the pay of all offices, including those filled by persons who are not appointed
from the Congress after a salary increase and thus are not mentioned in the Ineligibility Clause.
If that were the intended function of the Clause, however, it would not have been drafted in so


                                                  9
                            Opinions of the Office of Legal Counsel in Volume 33

limited a manner. To the extent the debates in the Constitutional Convention considered the
relationship of the Ineligibility Clause to the size of the federal government, the delegates tied
that concern to the increases that would result from allowing members of Congress to create, or
raise the pay of, offices they would themselves then occupy. See, e.g., 1 The Records of the
Federal Convention of 1787, at 380 (Mason) (cautioning that, without the Ineligibility Clause,
members of Congress “may make or multiply offices, in order to fill them”); see also id. at 387
(Mason) (referring to the Virginia legislature’s “partiality . . . to its own members”); id. at 388
(Elbridge Gerry) (members will care more about themselves than their relatives and friends);
id. at 392 (Madison) (all “public bodies” are inclined to support their own members).

        Our construction depends on the judgment that rollback legislation suffices to further the
Clause’s underlying purposes, but those who take the other side of this question have contested
that judgment. They contend that, even with rollback legislation, the purposes of the Ineligibility
Clause are not fulfilled. They raise three arguments along these lines.

        The first argument is that “an office for which Congress has once voted a pay increase
has been made more attractive . . . even if Congress passes remedial legislation,” because
“in such a case Congress is infinitely more likely to revote the pay increase as soon as the
[member’s] disqualification expires than if Congress had never voted a pay increase for the
office.” 119 Cong. Rec. 38,331 (1973) (letter from then-Professor Stephen G. Breyer). This
argument is arguably supported by some practice. Setting aside the two most recent instances
of rollback legislation, of the remaining five instances where Congress rolled back salaries for
specific appointees, the appointees in two cases later benefitted, however briefly, from a restored
salary. Philander Knox’s term as Senator would have ended in 1911; subsequently, in 1912, his
previously rolled-back salary as Secretary of State was increased, see Pub. L. No. 62-299, 37
Stat. 360, 372 (1912), and he enjoyed that benefit until he resigned in 1913. The bill rolling back
the salary in the case of Representative Casey provided for a salary increase to the pre-rollback
position at the end of what would have been his congressional term or upon the appointment of a
successor to his executive office, whichever was earlier. Pub. L. No. 94-195, § 1(b), 89 Stat.
1108 (1975). His term would have ended in January 1977, yet he remained at the Federal
Maritime Commission until October 1977, meaning that he enjoyed a few months of the higher
salary after his congressional term would have expired.10

        Despite the force of this argument, at the time Congress first acts to increase the salary of
the federal office, that higher level of pay remains a “conjectural reward[] a nominee may enjoy
after his [congressional] term expires.” 119 Cong. Rec. 38,347 (1973) (statement of Senator
Hart, arguing that weighing such rewards goes beyond the bounds drawn by the Framers);
cf. Memorandum for Timothy E. Flanigan, Deputy Counsel to the President, from Jay S. Bybee,
Assistant Attorney General, Office of Legal Counsel, Re: Applicability of Ineligibility Clause to
Appointment of Congressman Tony P. Hall at 3-4 (May 30, 2002) (noting, with respect to an
office the pay for which is set at the time of each appointment, that although prior action raising
the salary of the previous appointee to the office “arguably might lead to some expectations

        10
            The legislation affecting Senator Muskie also included such a provision. Pub. L. No. 96-241, § 1(b),
94 Stat. 343 (1980). But Secretary of State Muskie resigned before the term for which he had been elected Senator
would have ended.



                                                       10
          Validity of Statutory Rollbacks as a Means of Complying with the Ineligibility Clause

about the salary to be paid [to the subsequent appointee] . . . this expectation is, in the end, a
matter of speculation” and “[u]ntil the President [] or his delegate acts, there are no emoluments
attached to the office in question”). At the time of a salary increase, it cannot be known whether
Congress in the future, if it rolls back the increase, will also provide for its restoration or whether
the prospective appointee will still occupy the executive office at the time that any such
restoration takes effect. In three of the five historical cases of individual rollbacks, the
appointees never drew a restored salary. Attorney General Saxbe’s term would have ended in
January 1975; he resigned in February 1975; and later that month Congress restored the Attorney
General’s salary, retroactively to the day after Mr. Saxbe’s resignation. Pub. L. No. 94-2, 89
Stat. 4 (1975). Upon a change in administration, Secretary of State Muskie resigned before the
term for which he had been elected Senator would have ended. Treasury Secretary Bentsen
resigned in 1994, shortly after the end of the term for which he had been elected Senator.
Congress did not restore the salary for the office of Secretary of the Treasury until 1997. Pub. L.
No. 105-61, § 116, 111 Stat. 1272, 1284 (1997). The possibility that an officer appointed after a
salary rollback will ever receive the higher salary is speculative. At the very least, there is no
practice, as far as we have been able to determine, of Congress immediately increasing salaries
after a rollback, as then-Professor Breyer conjectured.

        The second argument contends that, whether or not the fact of an increase during a
member’s term makes a post-appointment increase more likely, the current Congress, through a
post-appointment enactment, might immediately restore the rolled back salary of the position
after the member of Congress is appointed. The 1987 opinion states: “Congress could in all
cases reduce the salary of the congressman on the day before he is nominated and restore it to its
increased level on the day after he is commissioned.” Cooper Memorandum at 6. As explained
above, it does not appear that Congress has ever taken such a step. Nevertheless, according to
this argument, the mere possibility that Congress might restore the salary as of the day after
commissioning demonstrates the invalidity of the rationale on which rollback legislation is
based.

        This argument has prompted a range of responses. Acting Attorney General Bork said
that he “would like to address that question at that time, if things fall out that way.” Bork
Statement at 12. Professor Van Alstyne took the position that the former member could not
accept a salary increase enacted by the same Congress that voted a roll-back. Van Alstyne
Statement at 53. Assistant Attorney General Scalia thought that, although the matter was not
free from doubt, a post-appointment enactment restoring the salary would be constitutional and
could be accepted by the former member. Memorandum to Hugh M. Durham, Chief, Office of
Legislative Affairs, from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel,
Re: Proposed Bill to Increase the Salary of the Attorney General at 3 (Nov. 22, 1974) (“Scalia
Memorandum”).

        We agree with Acting Attorney General Bork’s approach: there is no need to deal with
this issue until Congress actually seeks to restore a rolled-back salary immediately upon an
appointee’s taking office. We only note that, even if Congress did take such action, it would not
necessarily be inconsistent with the purposes behind the Ineligibility Clause. The former
member, no longer being in Congress, might have lost much of his power to influence
congressional action. Thus, a salary restoration enactment after his appointment to office might


                                                   11
                            Opinions of the Office of Legal Counsel in Volume 33

not be a subterfuge by which the constitutional restraint against self-dealing would be avoided.
Likewise, post-appointment legislation restoring the salary of an office to its pre-rollback level
would not promote the ability of the executive corruptly to wield influence over the legislative
branch insofar as the appointment would already have been completed. The speculative
possibility, pre-appointment, that the salary of the office would later be restored, would hardly
seem sufficient enticement to achieve improper executive influence over prospective appointees
in Congress. Accordingly, the possibility of the repeal of the salary rollback, in itself, is not a
good reason for abandoning the view that a salary rollback achieves compliance with the
Ineligibility Clause.

          The third and final argument is that “the purpose of the provision is to prevent Congress
from [passing] special legislation for the benefit of one of its own Members” and that a rollback
statute “would have no function or purpose except to qualify a particular member
of . . . Congress for an office for which he could not otherwise qualify.” To Reduce the
Compensation of the Office of Attorney General: Hearing on S. 2673 Before the S. Comm. on
the Judiciary at 6 (statement of Professor Philip Kurland). Unlike the first two arguments, this
one attacks the constitutionality of the rollback legislation itself, rather than the subsequent
appointment.11 In precisely this respect, however, the argument does not square with the
language of the Ineligibility Clause. By its terms, the Clause does not address any legislation,
whether for the benefit of a particular congressional member or for the benefit of a more general
class. Instead, it forbids appointment to civil office. See Scalia Memorandum at 4. This
argument, therefore, does not convincingly answer the case in favor of the effectiveness of
rollback legislation.

                                                        IV.

        Our conclusion that the history and purposes of the Clause favor a construction of the text
that permits rollback legislation to bring an appointment into constitutional compliance draws
further support from the practice of the political branches for more than a century. Several
Congresses, as well as administrations of both parties, have affirmed that salary rollbacks
achieve compliance with the Ineligibility Clause.

         On at least seven occasions since the Civil War, Congress has rolled back the salary paid
for service in an office, and subsequent to such rollbacks, the Senate has confirmed and the
President has appointed a member of Congress who would otherwise have been barred from that
office. First, in 1876, while Senator Lot M. Morrill was serving a term that had begun in 1871,
he was nominated, confirmed, and appointed as Secretary of the Treasury. Congress had raised
cabinet members’ salaries from $8,000 to $10,000 in 1873 and then, in an effort at fiscal
retrenchment, had returned the salaries in 1874 to their previous level. Act of Mar. 3, 1873, ch.
226, 17 Stat. 485, 486; Act of Jan. 20, 1874, ch. 11, 18 Stat. 4. In this instance, unlike the others
that followed, the lowering of the salary was not expressly for the purpose of achieving
compliance with the Ineligibility Clause. Nevertheless, absent the salary reduction, Senator

        11
            Professor Van Alstyne’s answer to the second objection—that a statute to restore an appointee’s salary
before the end of the term for which he had been elected would be unconstitutional—is similar to the third objection
in the sense that it asserts the unconstitutionality of legislation, rather than of an appointment.



                                                        12
             Validity of Statutory Rollbacks as a Means of Complying with the Ineligibility Clause

Morrill would not have been eligible for the office. Second, in 1909, Congress reduced the
salary of the Secretary of State so that Senator Philander Knox could be appointed to the office.
During Knox’s term in the Senate, Congress had raised the salary of cabinet positions from
$8,000 to $12,000. Pub. L. No. 59-129, 34 Stat. 935, 948 (1907). When President Taft
announced his intention to nominate Knox, Congress reduced the Secretary of State’s salary to
$8,000, Pub. L. No. 60-235, 35 Stat. 626 (1909), and Knox was then confirmed and appointed.
Third, in 1973, Congress reduced the Attorney General’s salary from $60,000 to $35,000,
thus rolling back a raise that had become effective during William Saxbe’s term in the Senate.
Pub. L. No. 93-178, 87 Stat. 697 (1973). Fourth, at the request of Attorney General Edward H.
Levi, Congress in 1975 reduced the salary of a position as Federal Maritime Commissioner, in
order to permit Congressman Robert Casey to be appointed, and Casey was confirmed and
appointed to that position. Pub. L. No. 94-195, 89 Stat. 1108 (1975); 121 Cong. Rec. 40,811
(1975). Fifth, in 1980, Congress rolled back the salary of the Secretary of State to permit
Senator Edmund Muskie to be appointed. Pub. L. No. 96-241, 94 Stat. 343 (1980). Sixth, in
1993, a salary rollback for the Secretary of the Treasury enabled Senator Lloyd Bentsen to be
appointed. Pub. L. No. 103-2, 107 Stat. 4 (1993). The bill was signed by President George
H.W. Bush, without any mention of a constitutional concern. 2 Pub. Papers of George Bush
2323 (1993). Finally, Congress passed legislation, signed by President George W. Bush, rolling
back the salary for the Secretaries of State and the Interior in order to permit the appointment of
Senators Hillary Clinton and Ken Salazar to those respective offices by President Obama once he
assumed office. See Pub. L. No. 110-455, 122 Stat. 5036 (2008) (concerning emoluments of
Secretary of State); Pub. L. No. 111-1, 123 Stat. 3 (2009) (concerning emoluments of Secretary
of the Interior).12

       On two of these occasions, Congress thoroughly debated the constitutional issues before
approving the rollback legislation. In 1909, the bill to reduce the salary of the Secretary of State
prompted a full debate in the House of Representatives, during which opponents of the measure
argued for its defeat on the ground that it would not bring Senator Knox’s prospective

        12
             The Ineligibility Clause was also at issue when President Roosevelt nominated Senator Hugo Black to
the Supreme Court. Note, Courts—Legality of Justice Black’s Appointment to Supreme Court, 37 Colum. L. Rev.
1212 (1937). The Senate, in passing the Retirement Act of 1937, had increased the retirement pay of Justices.
Pub. L. No. 10, 75 Stat. 24 (1937). It was argued at the time that there had been no increased emolument as to
Justice Black because he would not have become eligible for retirement unless he served for almost 20 years on the
Court. Edward S. Corwin, The President: Office and Power, 1787-1957, at 72-73 (4th rev. ed. 1957); see also State
ex rel. Todd v. Reeves, 82 P.2d 173 (Wash. 1938) (contemporaneous case reaching conclusion that retirement
benefits are not “emoluments” under state constitution); cf. President Reagan’s Ability to Receive Retirement
Benefits from the State of California, 5 Op. O.L.C. 187 (1981) (California retirement benefits are not “emoluments”
within the constitutional provision barring the President from receiving “emoluments” from any state); Unpublished
Comptroller General Opinion B-207,467, 1983 WL 27823 (Comp. Gen.) (Jan. 18, 1983) (same). After Senator
Black was confirmed and took office, the Supreme Court dismissed, for lack of standing, a challenge to his authority
as Justice. Ex parte Levitt, 302 U.S. 633 (1937). The Black nomination did not involve any issue of rollback
legislation. Similarly, when Representative Abner Mikva was nominated to the United States Court of Appeals for
the District of Columbia Circuit, opponents argued that his appointment was barred by a pay increase that might
have gone into effect after his confirmation. Our Office concluded that it was uncertain whether the salary increase
would take place and thus that the Ineligibility Clause would not forbid the appointment, 3 Op. O.L.C. at 289, and a
challenge to Judge Mikva’s appointment was dismissed on standing grounds. See McClure v. Carter, 513 F. Supp.
265 (D. Idaho), aff’d sub nom. McClure v. Reagan, 454 U.S. 1025 (1981). Again, no issue of a rollback was
involved.



                                                        13
                             Opinions of the Office of Legal Counsel in Volume 33

appointment into conformity with the Ineligibility Clause. See H.R. Rep. No. 2155, at 2-3
(1909) (Views of the Minority); 43 Cong. Rec. 2390-2402, 2410-2415 (1909). Eventually,
Congress voted to pass the rollback legislation, and it was signed by President Taft. Again in
1973, when the bill to roll back the Attorney General’s salary was under consideration, the Post
Office and Civil Service Committee and the Judiciary Committee of the Senate held hearings on
the constitutional issues, and the Senate debated those issues at length. Office of the Attorney
General: Hearing on S. 2673 Before the S. Comm. on Post Office and Civil Service, 93d Cong.
(1973); To Reduce the Compensation of the Office of Attorney General: Hearing on S. 2673
Before the S. Comm. on the Judiciary, 93d Cong. (1973); 119 Cong. Rec. 36,484-36,485, 38,315-
38,349 (1973). After this deliberation, Congress passed the bill, Pub. L. No. 93-178, 87 Stat. 697
(1973), President Nixon signed it without constitutional objection, and Congress subsequently
confirmed Senator Saxbe as Attorney General.

        Accordingly, the practice of the political branches, over more than a century and after
serious deliberation, supports the effectiveness of rollback legislation to achieve compliance
with the Ineligibility Clause. As Chief Justice John Marshall wrote in McCulloch v. Maryland,
17 U.S. (4 Wheat.) 315 (1819), where “the great principles of liberty are not concerned,” any
doubtful question, “if not put at rest by the practice of the government, ought to receive a
considerable impression from that practice.” Id. at 401.13

                                                              V.

        For these reasons, we believe that, where a salary increase for an office would otherwise
create a bar to appointment of a member of Congress under the Ineligibility Clause, compliance
with the Clause can be achieved by legislation rolling back the salary of the executive office
before the appointment.

                                                                          /s/


                                                            DAVID J. BARRON
                                                      Acting Assistant Attorney General




         13
             Although the Presidents and Congresses passing rollback legislation could be seen as the parties that the
Ineligibility Clause was meant to restrain, and thus it could be argued that their practice is not entitled to much
weight, such an argument would overlook that Presidents, Senators, and Representatives all swear an oath pledging
support for the Constitution, U.S. Const. art. VI, cl. 3, and should be presumed to take this oath seriously. Their
long-standing practice may not be conclusive, but surely it merits respect.



                                                         14
USDOJ Seal                                            U.S. Department of Justice
                                                      Office of Legal Counsel




  Office of the     Assistant   Attorney   General    Washington. D.C. 20530

                                                                                   August 24   1987



                  MEMORANDUM FOR THE COUNSELOR TO THE ATTORNEY GENERAL
                                                                                               i


                         Re:    Ineligibility of Sitting Congressman
                                to Assume A Vacancy on the Supreme Court

         This memorandum is to confirm advice previously given to you
    orally that Article I, section 6 of the Constitution prohibits in
    all circumstances the appointment of those now serving as
    Senators and Members of the House of Representatives to the
    current vacancy on the Supreme Court.
                                                     I.
              The Ineligibility Clause of the Constitution provides:
              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
              (emphasis added).
        Art. I, sec. 6, cl. 2.
         The salaries of all Associate Supreme,Court Justices were
    increased on February 4, 1987 to $115,000.   Therefore, whatever
    the ultimate fate of the salary applicable to the Supreme Court
    seat now vacant, it is plain that the "Emoluments" of that "civil
    Office" were "encreased" during the "Time for which" each now-
    seated congressman "was elected." The plain meaning of this
    clause thus disqualifies those now serving in Congress from being
    appointed to the Supreme Court.


       Proposed increases in judicial salaries are transmitted to
     Congress by the President, based upon the recommendations of the
     Commission on Executive Salaries, which was created by Public Law
     99-190. Congress may then take action to block the proposed
     increases. If it does not, the increases go into effect
     automatically. The increase in the salaries of Associate Supreme
     Court Justices was included in the President's Fiscal Year 1988
     Budget Message, and Congress allowed the increase to take effect.
     Although this would seem to end the matter, in fact a number
of past administrations have circumvented the effect of this
clause. This has been accomplished by having Congress restore
the salary of the office to which the President sought to appoint
a sitting congressman to the amount paid for that office when the
prospective nominee assumed his seat in Congress. (For the sake
of clarity and convenience I will refer to the salary applicable
at the time the congressman took his congressional seat as the
"original salary" and the office to which the President seeks to
nominate a congressman as the "vacant office.") It is therefore
necessary to examine this practice to determine if it. comports
with either the letter or the spirit of the Constitution. We
conclude that it does not, and therefore recommend against the
use of such a device.
     Although the Records of the Constitutional Convention do not
directly address this specific issue, they nonetheless provide
valuable guidance in two ways: they reveal the concerns of the
Founders prompting their inclusion of this clause in the
Constitution, and they show that the artifice of reducing the
salary of a particular vacant seat was in no way contemplated.
Specifically, they reveal that the Framers' concerns extended
beyond merely the precise amount that would be paid a congressman
assuming a vacant office.
     The language first proposed at the Constitutional Convention
would have permanently barred all members of the House from
assuming any seat created during their tenure in Congress. Many
supported that proposal. For example, James Madison stated
unequivocally: "I am . . .of the opinion that no office ought to
be open to a member, which may be created or augmented while he
is in the legislature." 1 M. Farrand, The Records of the Federal
Convention of 1787 380 (1966)(hereinafter "Farrand"). Roger
Sherman was "for entirely incapacitating members of the
Legislature. He thought their eligibility to offices would give
too much influence to the Executive. He said the incapacity
ought at least be extended to cases where the salary should be
increased, as well as created, during the term of the member. He
mentioned also the expedient by which the restriction could be
evaded to wit: an existing officer might be translated to an
office created, and a member of the Legislature be then put into
the office vacated (emphasis in original)." 2 Farrand at 490.
Edmund Randolph "was inflexibly fixed against inviting men into
the Legislature by the prospect of being appointed to offices."
Id. at 491. George Mason agreed as well.
     In the end, the motion to bar all legislators from ever
taking offices created or for which the salaries were increased
during their term in Congress was defeated. In large part this
was due to the fact that the "first Legislature [would] be
composed of the ablest men to be found," id. (remarks of
Pinkney), whom they did not wish to prevent forever from holding
the many offices that would be created during that term of
Congress, But the serious consideration given to the idea of a


                               -2-
complete bar helps to put in perspective the Founders' concern on
this question, and their view of its importance in maintaining
the proper balance between the three coordinate branches.
     Opinions of the Attorney General going back over one hundred
years further demonstrate the force of the Ineligibility Clause.
For example, Attorney General Benjamin Harris Brewster held that
Senator Kirkwood, who had been elected to a term expiring 1883,
could not assume the post of tariff commissioner in 1882. That
Kirkwood had not been a Senator when the office was created,
having resigned in March of 1881 to serve as Secretary of the
Interior, did not change Harrison's analysis. 17 Op. Att'y Gen.
365 (1882). He there opined:
     I must be controlled . . . by the positive terms of the
     provision of the Constitution. The language is precise
     and clear, and, in my opinion, disables him from re-
     ceiving the appointment. The rule is absolute, as
     expressed in the . . . Constitution, and behind that I
     can not go, but must accept it as it is presented
     regarding its application in this case.
            2
Id. at 366.
     Acting Attorney General Holmes Conrad echoed Harrison's
words twelve years later in the face an attempted circumvention
of the Ineligibility Clause. In that case Senator Matthew W.
Ransom was appointed to be ambassador to Mexico, despite his
having voted to increase the salary of that position in 1891.
His term was scheduled to end on March 4, 1895. He was nominated
and confirmed as of February 23rd, but his commission was not
signed until March 5, 1895. Acting Attorney General Conrad could
not have been clearer: "Mr. Ransom was not, in my opinion,
eligible to appointment to that office." 21 Op. Att'y Gen. 211,
214 (1895).
     In 1922 Attorney General Harry Daugherty articulated the two
events that must coincide for a congressman to be disqualified
from assuming an office because of the Ineligibility Clause.
2
  The next year Attorney General Brewster opined that the
Ineligibility Clause prohibits even the nomination and confir-
mation of a sitting congressman to an office created or for which
the salary has been increased during his term in office, even if
the commission is not signed until after his ineligibility
ceases. Under this analysis, President Reagan could not nominate
a congressman in the fall of 1988 — even assuming that the
Senate would confirm the candidate — and sign the congressman's
commission on January 4, 1989, after the congressman's term (and
thus ineligibility) has ended, but before the President's term
ends on January 20, 1989. See 21 Op. Att'y Gen. 211, 214
(1895)("Although he might have been commissioned on the 5th day
of March, yet if he was nominated and confirmed on the 23rd of

                               -3-
     (a) Increasing the emoluments of an office;
     (b) appointing a Senator or Representative to an office
     the emoluments of which had been increased, both
     occurring during the term which the Senator or
     Representative was then serving (emphasis in original).
33 Op. Att'y Gen. 88, 89 (1922). Both are present with respect
to currently-sitting congressmen. The salaries of the Supreme
Court Justices were increased during the most recent term. This
should disqualify all those congressman now in office |rom being
appointed to the current vacancy on the Supreme Court.
                               II.
     First in 1876, then again in 1909, and most recently in
1973, congressmen who were constitutionally disabled from serving
in certain offices were nominated and confirmed after Congress
reduced the salaries of the vacant offices to the salary appli-
cable when the prospective nominees first began their cong-
ressional terms.   In 1876 Lot M. Morrill was appointed to serve
as Secretary of the Treasury after having been elected to the
Senate in 1871. Cabinet officers' salaries had been raised in

  (Cont.) February, that, under the rule stated, would seem to
be the date of [the] appointment.")
•3
  Attorney General Daugherty's statement that "there is a
dearth of authority on this question and no decided cases"
remains true today. He, however, like his predecessor Acting
Attorney General Conrad, was strongly influenced by the thoughts
of Judge Story on this question:
     The reasons for excluding persons from offices who have
     been concerned in creating them, or increasing their
     emoluments, are to take away, as far as possible, any
     improper bias in the vote of the representative, and to
     secure to the constituents some solemn pledge of his
     disinterestedness. The actual provision, however, does
     not go to the extent of the principle, for his
     appointment is restricted only 'during the time for
     which he was elected,' thus leaving in full force every
     influence [on] his mind, if . . . [the] election is
     short or the duration of it is approaching its natural
     termination.
 Id. at 88-89.
  The following historical background is drawn in large part from
the testimony of Acting Attorney General Robert H. Bork in 1973.
To Insure that the Compensation and Other Emoluments Attached to
the Office of Attorney General Are Those Which Were In Effect on
January 1, 1969; Hearings on S. 2673 Before the Senate Committee
on Post Office and Civil Service, 93rd Cong., 1st Sess. 8-16
 (1973).

                               -4-
1873 from $8,000 to $10,000 and reduced in 1874 back down to
$8,000. Senator Morrill's nomination was nonetheless confirmed
by the Senate.
    In 1909, Senator Philander Knox, who had been elected in 1905
for a term expiring in 1911, was nominated to be Secretary of
State. In 1907 the Secretary of State's compensation had been
increased to $12,000 from $8,000. A bill reducing the
compensation payable to the Secretary of State was introduced to
get around the constitutional problem. Assistant Attorney
General Russell opined unofficially that the purpose of the
constitutional provision was "to destroy the expectation a Repre-
sentative or Senator might have that he would enjoy the newly
created office or newly created emoluments." 43 Cong. Rec. 2403,
February, 15, 1909 quoted in S. Rep. No. 499, 93rd Cong., 1st
Sess. 6 (1973) (Statement of Acting Attorney General Robert H.
Bork) (hereinafter "Bork Statement"). Thus, a reduction in the
salary of the office was thought to destroy that expectation, and
satisfy the concerns of the Ineligibility Clause.
     Most recently, in 1973, Congress reduced the salary of the
Office of Attorney General from $60,000 to $35,000 to enable
Senator Saxbe to assume that office.
     Although some authorities have defended this practice,
including an opinion of this Office, the weight of authority
seems to believe that the practice is unconstitutional.   The
thrust of the arguments supporting the practice was that it did
not undermine the general purposes of the Framers in drafting the
Ineligibility Clause. As Robert G. Dixon, then Assistant
Attorney General of the Office of Legal Counsel, opined:

5
  It is worth noting that this first example is not quite like
the subsequent two cases. The salary of the office had been
raised and then lowered prior to Senator Morrill's nomination.
Thus, it is possible that the issue was not discussed at length.
Even if it was noticed, it is one thing to say an independent
change in salary does not disqualify a congressman from assuming
an office at the same salary as was applicable when he took his
congressional seat, but it is quite another to introduce legis-
lation with the express aim of circumventing a constitutional
prescription. The former may still not be permissible, but the
latter is constitutionally far more suspect.
  To Reduce the Compensation of the Office of the Attorney
General: Hearings Before the Senate Committee on the Judiciary on
S. 2673. 93rd Cong., 1st Sess. (1973)(hereinafter "Saxbe
Hearings"). At those hearings, Professors Phillip Kurland,
Willard Lorenson, William Swindler, and Paul Mishkin all opposed
the reduction in pay of the attorney general to enable Senator
Saxbe to take the office as unconstitutional. Among the
academics who testified there, only Professor William Van Alstyne
believed that the practice was constitutional.


                               -5-
      A major purpose of the Ineligibility Clause according
    to its originator is the prevention of the evils which
    would arise if legislators could benefit from the
    creation of new offices or increase [sic] in the
    emoluments of existing ones. . . Neither the public[,]
    nor the Executive branch, nor the Legislative branch is
    well-served by a prohibition so broad that it over-
    corrects and needlessly deprives members of Congress of
    opportunities for public service in appointive civil
    offices. S. 2673 would overcome the former evil
    regarding emoluments by preventing Senator Saxbe from
    obtaining the benefit of the 1969 increase and any
    other emoluments, without wastefully barring him from
    offering his services to the country in an appointive
    office.
      Nothing in the history of the Ineligibility Clause
    suggests that a strict literal interpretation should be
    adopted in cases where the action in question is
    totally consistent with the purpose of the Clause.
Saxbe Hearings, at 71-72 (Statement of Robert G. Dixon, Jr.
Assistant Attorney General). See also Bork Statement, at 6.
     With all respect, we believe there are a number of flaws in
this reasoning. First, and most important, it simply ignores the
plain language of the Ineligibility Clause. In addition, it
fails to account for many of the broader concerns addressed by
the Founders during the Constitutional Convention. The Founders
had serious reservations about the wisdom of giving to the
executive the power to appoint legislators to lucrative and
prestigious executive and judicial offices. They also sought to
avoid the spectacle of legislators seeking an office throughout
their term at the expense of their constituents. They therefore
tried to limit the instances in which the executive could offer
such enticements to legislators. Thus, to the extent that
lowering salaries of vacant offices increases the frequency of
such appointments, it serves to frustrate the intentions of the
Framers.
     Finally, it seems clear that the reduction in salary device
does not act as a safeguard against violating either the letter
or spirit of the Ineligibility Clause. This is because Congress
could in all cases reduce the salary of the congressman on the
day before he is nominated and restore it to its increased level
the day after he is commissioned.   Thus, permitting this device

7
  It is worth noting, however, that such a "fix" requires the
cooperation of both houses of Congress, not just that of the
Senate. A bill affecting the salary of an executive or judicial
office would require action by the House of Representatives.
Although this fact has no constitutional implications, it may
have a practical effect in the case of a controversial nominee

                               -6-
to circumvent the Ineligibility Clause would largely render it a
nullity. That this could be accomplished is borne out by past
opinions of this Office.
     In 1979, Congressman Mikva was nominated to serve as a judge
on the District of Columbia Circuit. The question arose whether
Congressman Mikva could lawfully "be appointed to a judgeship as
to which the emoluments may be increased subsequent to his
appointment," but during his elected term. 3 Op. O.L.C. 286, 287
(1979) (emphasis added).   Based upon a close reading of the
language of the constitutional provision, we concluded that "the
provision on its face plainly shows an intention of preventing an
appointment only when an increase in the emoluments of an office
precedes an appointment of that office." Id. at 288. More
important for present purposes, we determined that Congressman
Mikva would not be constitutionally disqualified by a subsequent
increase in salary during his congressional term. We said:
      I f . . . it were held that a sitting Member of
     Congress could not be appointed to an office the
     emoluments of which were increased after his
     appointment, then Congress, by enacting a salary
     increase after the President had appointed him a
     Federal judge, would thereby retroactively invalidate
     the appointment. This would, in effect, amount to his
     removal and thus would circumvent the constitutionally
     mandated process of impeachment as the only existing
     method for removing Federal judges.
Id. at 289 n. 1.

  (Cont.) the Senate is willing to confirm who faces serious
opposition in the House.
  Federal judges were then compensated at rates determined by the
Federal Salary Act, which were adjusted pursuant to the Executive
Salary Cost of Living Act. The latter Act provided that the
salary rate of federal judges was to be adjusted by a percentage
equal to the overall percentage of adjustments made in the rate
of pay under the General Schedule. Under the Federal Pay
Comparability Act of 1970, the President was to direct his agent
to prepare an annual report comparing rates of pay in the public
and private sectors and recommend adjustments of the former.
After considering the report and findings of the Advisory
Committee on Federal Pay, the President was to adjust statutory
rates of pay accordingly. His adjustment would become effective
in October of the applicable year. Alternatively, the President
could present Congress with an alternative plan incorporating
appropriate salary adjustments. That alternative was to become
effective in October unless either House of Congress disapproved
of the plan, in which case the initial proposal of the Advisory
Committee on Federal Pay became effective. At the time
Congressman Mikva was nominated, the pay raise for judges for


                               -7-
     Thus, having concluded that there is no constitutional
impediment to raising the salary of a congressman during his
unexpired congressional term, but after his appointment to the
office, it becomes evident that undermining the Ineligibility
Clause is an extremely simple matter. The former colleagues of
any congressman taking office by virtue of a reduced salary could
ensure, pursuant to a prearranged agreement or otherwise, that
the increased salary will be restored as soon as he takes
office.   This would serve to diminish the degree of a
congressman's impartiality — or at least the appearance
thereof — with respect to the salaries of executive and judicial
offices he covets, thus frustrating the general objective of the
constitutional provision, as well as violating the precise
prohibition.

  (Cont.) 1979 had not yet taken effect; in fact, it had not yet
been transmitted to Congress.
g
  In his testimony before the Judiciary Committee in 1973,
Professor Van Alstyne considered the three possibilities in the
event of an increase in Senator Saxbe's salary the moment he took
office: (i) the increase would be effective; (ii) the adoption
would at once disqualify him as Attorney General; and (iii) he .
would remain as Attorney General, but would be denied the
increase. Saxbe Hearings, at 53. To Professor Van Alstyne, "the
plain sense and the history of [the Ineligibility Clause]
persuade me that the proper answer is the last one — he would
not be automatically disqualified, but he would be precluded from
realizing any personal benefit during the balance of the term he
was elected to the Senate." Thus, Professor Van Alstyne's
solution to this problem is to infer an implicit prohibition
against post hoc salary increases to counteract the implicit
"Saxbe" exception to the Ineligibility Clause's express
prohibition. Although this theory certainly serves to get around
the problem we raised in our opinion concerning Judge Mikva, the
constitutional provision itself in no way contemplates or
supports this result. In our view, it is much more logical, and
much more faithful to the Framer's intent, simply to give effect
to the plain language of the Ineligibility Clause.
   Although it does not affect our constitutional analysis, we
note as well that there are policy concerns here that were not
present in the previous cases discussed above. Each of the three
offices for which the retroactive salary reduction device was
used in the past were in the President's cabinet. Here, a
judicial office is involved, thus raising policy concerns about
the independence of the judiciary. There is a long and
beneficial tradition that all judges of the same rank receive the
same pay. This avoids inequities and jealousies among members of
the bench and, more fundamentally, congressional efforts to
influence judicial decision-making through differential treatment
of similarly-situated judges. Indeed, similar concerns about
Congress' power to influence the judiciary through manipulation
of salaries led the Founders to prohibit any decrease in a

                               -8-
     In closing, we emphasize a point that would need no emphasis
were it not too often minimized or discarded. As Chief Justice
Marshall said in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188
(1824):
     As men, whose intentions require no concealment,
     generally employ the words which most directly and
     aptly express the ideas they intend to convey, the
     enlightened patriots who framed our constitution and
     the people who adopted it, must be understood to have
     employed words in their natural sense, and to have
     intended what they have said.
For this reason, departing from the actual words of the
constitutional text cannot be justified on the grounds that the
departure nevertheless fairly comports with some more
generalized, albeit unexpressed, purpose of the Framers. In any
event, such a departure is most assuredly unjustified where, as
here, it does not effectuate the Framer's broader objectives as
fully as does a literal interpretation of the provision's
specific terms. Thus, while the language of the Ineligibility
Clause is itself a fully sufficient reason to prohibit a sitting
congressman's appointment, such a prohibition also more
faithfully furthers the Framer's broader concerns. Given all
that, to countenance stratagems that seek to avoid the force and
effect of the Constitutions own terms in this context is
particularly ill-advised.




   (Cont.) judge's salary during his tenure on the bench. Art.
II, sec. 1. While this prohibition against reducing the salary
of a sitting judge is clearly not implicated here, the policy
concern animating the constitutional provision nonetheless
cautions against any precedent authorizing Congress to pay a
particular judge less than his colleagues.
   "I do not regard the Constitution like the Internal Revenue
Code which contemplates avoidance or evasions." Saxbe Hearings,
at 9 (statement of Professor P. Kurland).

                               -9-
                           CONCLUSION
     In sum, we believe that the language and purpose of the
Ineligibility Clause prohibits a sitting congressman from being
appointed to the Supreme Court, even if his salary as a Justice
is first reduced to the amount it was when he began his most
recent term.


                                     Signature of Charles J. Cooper
                                     Charles J. Cooper
                                 Assistant Attorney General
                                  Office of Legal Counsel




                              -10-
