           Legal Effect of Joint Resolution Disapproving the
                  President’s Pay Recommendations

A joint resolution o f Congress disapproving the President’s pay recommendations under the
   Federal Salary A ct o f 1967 has n o legal force when the joint resolution was passed by one
   house after the expiration of the statutorily prescribed 30-day period for Congress to disap­
   prove the recommendations. The recom mended pay raises are therefore effective. Congress
   rem ains free, however, to repeal those pay raises through legislation for that purpose.

                                                                                           February 9, 1987

           M   em orandum          O p in io n   for th e     C oun sel      to the      P r e s id e n t


   This responds to your request for our opinion whether § 3 of H.R.J. Res. 102
effectively “disapproved” the recent pay recommendations made by the Presi­
dent pursuant to the Federal Salary Act of 1967, 2 U.S.C. §§ 351 et seq. We
believe § 3 has no legal force, because H.R.J. Res. 102 was passed by the
House after expiration of the statutorily prescribed 30-day period for a joint
resolution of disapproval. Therefore, the salary increases become effective in
accordance with 2 U.S.C. § 359.
   The Federal Salary Act was intended to provide a systematic method of
adjustment in the rates of pay for the Vice President, members of Congress,
members of the federal judiciary, and most positions in the Executive Branch
covered by the Executive Schedule. The Act creates a Commission on Execu­
tive, Legislative, and Judicial Salaries, to be established every four years, with
a mandate to review and recommend to the President appropriate salary levels
for the specified officials. Id. §§ 351, 356. Not later than December 15 of the
fiscal year in which the review is conducted, the Commission is required to
submit to the President a report of the results of its review and its recommenda­
tions as to appropriate salary levels. Id. § 357. The President, in turn, must
“include, in the budget next transmitted . . . by him to the Congress . . . his
recommendations with respect to the exact rates of pay which he deems
advisable, for those offices and positions.” Id. § 358. These recommendations
become effective in accordance with § 359(2)' “unless any such recommenda­
tion is disapproved by a joint resolution agreed to by the Congress not later than
the last day of the 30-day period which begins on the date . .. such recommen­
dations are transmitted to the Congress.” Id. § 359(1).
  1 Section 359(2) provides that the “effectiv e date” o f the recom m ended rates o f pay “ shall be the first day o f
the first pay period w hich begins for such office or position after the end o f the 30-day period [for
congressional review ].”

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   Pursuant to this statutory scheme, in January the President submitted, with
the budget, recommended pay increases for the covered positions. The 30-day
period provided by § 359(1) for passage of a joint resolution of disapproval
expired at midnight, February 3, 1987. On January 29, 1987, well before
expiration of the period, the Senate passed H.R.J. Res. 102. As passed by the
Senate, § 3 of H.R.J. Res. 102 provides that:

           The recommendations of the President relating to rates of pay
           for offices and positions within the purview of section 225(f) of
           the Federal Salary Act of 1967 [2 U.S.C. § 356], as included
           (pursuant to section 225(h) of such Act [2 U.S.C. § 358]) in the
           budget transmitted to the Congress for fiscal year 1988, are
           disapproved.

The House, however, did not take final action on H.R.J. Res. 102 until Febru­
ary 4, 1987, the day after expiration of the 30-day period prescribed by
§ 359(1). Although the resolution passed by both Houses of Congress is identi­
cal and therefore will become law if signed by the President, we believe that the
delay in House action beyond the statutory 30-day period rendered ineffective
Congress’ action disapproving the raise.
   To our knowledge the issue raised is one of first impression. We start from
the well-founded premise that Congress could pass legislation at any time to set
specific rates of pay for the covered positions, consistent with constitutional
limitations.2 Clearly, Congress cannot bind itself legislatively from enacting
future legislation. Congress could, for example, pass a bill directing that the
rates of pay for the covered positions be no more than the rates payable as of a
given date, or actually setting specific salary levels. Such legislation, if signed
by the President, would supersede the effectiveness of the raises recommended
by the President under the Salary Act.3 Although it can be argued that the
difference between such legislation and the resolution of disapproval contained
in H.R.J. Res. 102 is only formalistic and that Congress’ inclusion of § 3 in the
resolution must therefore be given effect, we believe the sounder view is that
Congress did not intend in this instance for the disapproval to have any legal
force and effect.

  2 The C om pensation C lause o f the C onstitution, art. HI, § 1, provides that federal judges shall receive “a
C om pensation, which shall not be dim inished during their C ontinuance in O ffice.” Under United States v.
Will, 449 U.S. 200 (1980), a ju d g e 's salary increase “ ‘vests’ for purposes o f the Com pensation Clause only
when it takes effect as part o f the com pensation due and payable to A rticle 111 judges.” Id. at 229 (em phasis
added). Because § 359(2) o f the Salary Act provides that the recom m ended pay increases becom e effective on
the first day o f the first pay period after expiration o f the 30 days provided for congressional review , w e read
United States v. Will to mean that legislation to deny the recom m ended raises to members o f the judiciary
w ould have to be passed by Congress and signed by the President before the beginning of the next applicable
pay period, which we understand is March 1, 1987.
  3 Congress has, in fact, frequently used the appropriations process to set specific salary levels for federal
em ployees that are different from those set pursuant to existing statutory schemes (such as the Salary Act and
5 U.S.C. § 5305). The most recent example is § 144 o f last year’s Continuing Resolution, Pub. L. Nos. 9 9 -
500 and 99 -5 9 1 , in which C ongress mandated an across-the-board three-percent pay increase for federal
employees.

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   It is clear, both from the language of § 3 which specifically references the
procedures of the Salary Act as well as the debates on H.R.J. Res. 102, that both
Houses of Congress understood they were acting pursuant to the statutory
scheme set up by the Federal Salary Act, including the 30-day time limit
provided in § 359(1). See, e.g., 133 Cong. Rec. 2273 (1987) (remarks of Sen.
Glenn); 133 Cong. Rec. 2687-88 (1987) (remarks of Rep. Ford). There was
also considerable doubt voiced in both Houses that failure to act within the
statutory deadline would render any vote on the proposed resolution of disap­
proval moot. For example, Representative Ford, Chairman of the House Post
Office and Civil Service Committee, which had jurisdiction over the recom­
mended pay raises, stated that:
          Under the explicit terms of section 225 of the Federal Salary Act
          of 1967, it is clear that the deadline for congressional disap­
          proval of the President’s pay recommendations expired at mid­
          night last night, February 3. Since the House did not act by that
          deadline, what we do today is meaningless.
133 Cong. Rec. 2687 (1987). Similar views were voiced by other members of
the House and Senate. See, e.g., 133 Cong. Rec. 2282 (1987) (remarks of Sen.
Humphrey); id. at 2288 (remarks of Sen. Wilson); id. at 2278 (remarks of Sen.
Grassley); 133 Cong. Rec. 2688 (1987) (remarks of Rep. Smith). We have
found no contrary statements in the debates to suggest Congress wished to
ignore the 30-day limitation imposed by § 359(1). Therefore, while the Senate
certainly intended to disapprove the proposed increases, its intent was to do so
within the 30-day period, consistent with the statutory scheme; passage of
H.R.J. Res. 102 by the Senate does not necessarily imply any intent or authori­
zation once that 30-day period expires. Because of the failure of the House to
act within the 30-day period, its intent obviously was not to disapprove the
recommended increase within the required 30-day period. Indeed, in light of
the floor statements indicating that the House believed action on the bill after
the 30th day to be meaningless, we cannot say that the House intended to
disapprove the President’s recommendations at all.4 Looking at the intent of
both Houses, we conclude that there was no clear mutual intent to disapprove
the recommended pay raises.
   In any event, we believe that Congress is correct in its interpretation of the
effect of the 30-day deadline in § 359(1). Although Congress obviously could
achieve the same result, i.e., continuance of executive, legislative, and judicial
salaries at their current levels through other types of legislation, it chose to use
the mechanism provided in § 359(1). Because Congress chose to limit its
expression of disapproval within the terms of the Federal Salary Act, including
the requirement of a joint resolution of disapproval passed within 30 days
following the President’s transmittal of his recommendations, its actions must
  4 In a sense, as o f 12:01 a.m . on February 4, 1987, there w ere no “recom m endations” o f the President to be
approved; by operation o f statute, those recom m endations becam e actual pay increases, autom atically
effectiv e as o f the first day o f the next p ay period.

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be interpreted accordingly. Had Congress either successfully stated its disap­
proval within the requisite 30 days, or, before or after that period, expressly
indicated a willingness to disregard the existing statutory scheme, for example,
by amending § 359 or by expressly setting specific salary levels by legislation.
Congress could have easily and effectively disapproved the pay raises. Con­
gress, however, expressly acted within the confines of the Federal Salary Act,
and we believe the time limit imposed by that Act is therefore controlling.
  In sum, although the question is novel, we believe that § 3 of H.R.J. Res. 102
does not legally roll back the salary increases recommended by the President.
Those increases must therefore be put into effect, subject to any subsequent
congressional repeal of the pay raise as suggested above.

                                                C harles   J.   C ooper
                                            Assistant Attorney General
                                             Office o f Legal Counsel




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