                      Application o f the Ineligibility Clause

The Ineligibility Clause o f the Constitution would not bar the appointment of Representative Bill Rich­
   ardson to serve as United States Ambassador to the United Nations or of Senator William Cohen
   to serve as Secretary o f Defense.

                                                                                             December 31, 1996

                M e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t


 Y ou have asked whether the Ineligibility Clause, U.S. Const, art. I, §6, cl. 2,
would forbid the appointment of Representative Bill Richardson as United States
Ambassador to the United Nations or of Senator William Cohen as Secretary of
Defense. The Ineligibility Clause provides that

         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 Emolu­
         ments whereof shall have been encreased during such time . . . .

We believe that the Clause would not bar either appointment.
   Representative Richardson entered Congress on January 3, 1983; has served
continuously since then; and recently won election to the 105th Congress. The
President has announced his intention to nominate Representative Richardson to
be United States Ambassador to the United Nations. See 22 U.S.C. § 287(a).
   The President sets the salary of the Ambassador to the United Nations, at an
amount not to exceed the rate o f pay for chiefs of mission. Id. § 287(g). Chiefs
of mission may receive pay up to the amount for Level II of the Executive Sched­
ule (and may receive total compensation up to the amount for Level I). Id.
§ 3961(a). The salary of the current Ambassador equals the pay for Executive
Level II— the statutory maximum. At least one prior Congress in which Rep­
resentative Richardson was serving voted to increase the pay for the Executive
Levels and thus to raise the ceiling on the salary for the position. See Pub. L.
No. 101-194, § 703(a)(1), 103 Stat. 1716, 1768 (1989). Furthermore, during his
first term, the President increased the salary for the current Ambassador. We as­
sume that the 105th Congress will not enact any further increase before Represent­
ative Richardson would be appointed, and we understand that the President’s an­
nual order about pay in the executive branch, which will be issued shortly, will
not increase the pay for the Executive Levels.
   Only increases during the 105th Congress, and before Mr. Richardson’s appoint­
ment, could be disqualifying. The Ineligibility Clause identifies, as the disquali­
fying event, an increase “ during the Time for which [the Member of Congress]
was elected.” In 1922, President Harding sought Attorney General Daugherty’s

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                                    Application o f the Ineligibility Clause


opinion whether the Ineligibility Clause blocked the appointment of Senator Wil­
liam S. Kenyon as United States Circuit Judge because there had been a salary
increase during Senator Kenyon’s prior term. An Act of Congress had increased
judicial salaries on February 25, 1919, while Senator Kenyon was serving a term
that expired on March 4, 1919. On March 4, he began another term as Senator,
to which he had been elected in 1918. Attorney General Daugherty concluded
that the Ineligibility Clause covers only increases during the term that a Member
of Congress is currently serving and that the salary increase during Senator
Kenyon’s prior term did not stand in the way of his appointment. 33 Op. Att’y
Gen. 88 (1922).1 Thus, any increases voted by past Congresses, or ordered by
the President during past Congresses, would not bar Representative Richardson’s
appointment. (Under the circumstances here, we need not decide whether it is
the action of Congress in raising the ceiling or of the President in dictating the
pay that is the relevant “ encrease[]” under the Ineligibility Clause.) Moreover,
any increases that might take place after Mr. Richardson’s appointment would
not implicate the Ineligibility Clause, which is a bar to appointment when emolu­
ments “ shall have been encreased” and thus “ on its face plainly shows an inten­
tion of preventing an appointment only when an increase in the emoluments of
an office precedes an appointment to that office.” Constitutional L aw — Article
I, Section 6, Clause 2 — Appointment o f M ember o f Congress to a Civil Office,
3 Op. O.L.C. 286, 288 (1979).
   Senator Cohen did not seek reelection and thus will cease to be a member of
the Senate when the new Congress convenes. He therefore would not be appointed
“ during the Time for which he was elected,” and his appointment would not
be within the prohibition of the Ineligibility Clause, no matter what increases in
the salary for Secretary of Defense may have been enacted while he was in the
Senate. See, e.g.. Memorandum for William P. Rogers, Deputy Attorney General,
from J. Lee Rankin, Assistant Attorney General, Office of Legal Counsel, Re:
Qualification as M ember o f the Subversive Activities Control B oard (May 18,
1953).

                                                                  CHRISTOPHER SCHROEDER
                                                                Acting Assistant Attorney General
                                                                     Office o f Legal Counsel


   ■We have noted that "appointm ent o f a M ember o f Congress to an office created by some previous Congress,
of which he was also a member, has not been considered to be within the prohibition o f the Constitution. Numerous
such appointments have been made in the p a st." Memorandum for Files, from Norbert A. Schlei, Assistant Attorney
Genera), Office o f Legal Counsel, Re: Effect Upon the Judicial Appointment o f a Former Congressman o f a Judicial
Salary Increase, Enacted by the Congress from Which He Has Resigned at 2 (Dec. 12, 1963). See also Memorandum
for the Attorney General, from J. Lee Rankin, Assistant Attorney General, Office o f Legal Counsel, Untitled (Sept.
I, 1954).

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