                                                                 July 19, 1979


79-54     MEMORANDUM OPINION FOR THE
          ATTORNEY GENERAL

          Constitutional Law—Article I, Section 6, Clause
          2—Appointment of Member of Congress to a Civil
          Office


   This m em orandum addresses the arguments made in a letter dated July
 16, 1979, from the general counsel o f the National Rifle Association
(NRA), to Senator Joseph Biden concerning the constitutional eligibility
o f Representative A bner Mikva for appointm ent to the U.S. Court o f A p­
peals for the District o f Columbia Circuit. The letter substantially repeats
contentions contained in an unsigned mem orandum dated July 2, 1979, to
which I responded in my m em orandum to you o f July 11, 1979. However,
in order to clarify the issues, we will discuss certain o f the main points ad­
vanced by the NRA after summarizing our position.
   It is our conclusion that, under the present statutory posture, C on­
gressman M ikva’s appointm ent is not barred by Article I, Section 6,
Clause 2, o f the C onstitution. First, since no increase in the emoluments o f
Federal judges has to date come into effect during this Congress, we are
dealing with a situation in which there is a prospect—but no present
reality—o f such an increase. Accordingly, the question is whether the ap­
pointm ent is barred by the possibility o f a future salary increase during the
term for which the M ember o f Congress was elected. The plain language
and settled executive interpretation o f Clause 2 firmly support the view
that a sitting member o f Congress is not barred from appointm ent in such
circumstances. Second, even if a salary increase were to occur prior to the
appointm ent o f Representative Mikva, it is our position that Congress is
constitutionally empowered to exempt from coverage o f the increase the
office to which Representative Mikva may be appointed. Such practice has
both historic (the appointm ent o f Senator Knox as Secretary o f State) and
m odem (appointm ent o f Senator Saxbe as A ttorney General) precedent,
each o f which was referred to in our earlier m em orandum.
   The NRA, in responding to these arguments, has stated quite clearly

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(at page 2 o f its July 16 letter) that its position is that under existing
statutes “ the com pensation o f federal judges must increase during the
present Congress.” This is simply incorrect. It is possible for Congress, by
means o f legislation, to block a salary increase for judges during the pres­
ent Congress; we do not now know what course Congress will take.
   Further, the NRA letter makes plain that its position is that all sitting
Members o f Congress are barred from appointm ent to Federal judgeships,
or any other “ civil office” for purposes o f Clause 2, until after the end o f
their terms as Members o f Congress. That reasoning rests on the premise
that the Federal salary statutes, by providing for the possibility o f annual
adjustm ents in Government salaries, disqualify all Members o f Congress
because, after their appointm ent to a civil office, the office to which they
had been appointed may have its compensation adjusted upwards. Such
an extreme view fails to take account o f the plain wording o f Clause 2,
stating that no Member o f Congress “shall * * * be appointed” to a civil
office the emoluments o f which “ shall have been encreased” during the
term for which the member was elected. [Emphasis added.] As we noted in
our earlier m em orandum, by using the future tense in referring to an ap­
pointm ent, while employing the future perfect tense to refer to an increase
in emoluments, the provision on its face displays a clear and unambiguous
intent o f preventing an appointm ent only when an increase in the
emoluments o f an office precedes an appointm ent.
   In response, the NRA letter seems to suggest that our position treats dif­
ferently the provision’s language “ shall have been created * * * during
such tim e,” referring to an office, and the language “ shall have been
encreased * * * during such tim e,” referring to the com pensation. If we
understand th at suggestion correctly, the opposite is in fact the case. For it
is clear that a Member o f Congress cannot be appointed to a civil office
before the office has been created. Thus, the constitutional language refer­
ring to the creation o f offices must be taken to refer to a situation in which
an office is created during the term o f a Member o f Congress, at a certain
time, and after that time but before the end o f his term , the member is ap­
pointed to the office. Such an appointm ent under Clause 2 is barred. In
precisely analogous fashion, with respect to the language regarding an in­
crease in emoluments, the language must, in our opinion, be taken to refer
to a situation in which the emoluments o f an office are increased during
the term o f a Member o f Congress, at a certain time, and after that time
but before the end o f this term , the Member is appointed. In short, the two
situations should be viewed in parallel terms. That reasoning leads to our
conclusion th at unless emoluments for an office have been increased prior
to appointm ent, the C onstitution presents no bar.
   Further, the N R A ’s letter rather inexplicably asserts that Attorney
General Clark’s opinion regarding the appointm ent o f Representative
Laird to the office o f Secretary o f Defense does not lend support to the
view that Representative Mikva’s appointm ent would be constitutional.

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In fact, the Clark opinion directly supports that view. U nder the statute in­
volved in the Clark opinion, the President was authorized to include
recommendations for salary increases, if any, in his budget message to
Congress, the recom m endations to become effective no earlier than 30
days following the transm ittal in the President’s budget message, unless
they were disapproved by Congress. U nder these circumstances, Mr. Laird
would have been a Member o f the 91st Congress when the recommenda­
tions for salary increases were transm itted, but the Secretary o f Defense
when they became effective. See O p. A tt’y Gen. 381, 382 (1969) On this
basis—which if anything is less favorable than the present factual situa­
tion—A ttorney General Clark reasoned that the appointm ent would be
valid because the proscription o f Clause 2 does not apply where “ it is im­
possible but not certain at the time o f the appointm ent that a proposed
salary increase for the appointee may receive final approval at a future
d ate.” 42 O p. A tt’y Gen. 382. That reasoning applies directly to this case,
in which it is possible, but not certain, that a salary increase may receive
final approval at a future date.
   In response to our contention that even if, in the future, a salary in­
crease for Federal judges were to come into effect before Representative
Mikva were appointed to the Federal bench, Congress still could by
legislation exempt his office from coverage o f the salary increase. The July
16 m em orandum merely repeats points earlier advanced. The short answer
is th at, although this point has been debated in the past (for example, by
Professor Kurland), Congress quite correctly, has not accepted the sugges­
tion that Clause 2 stands in the way o f such a procedure.

                                           John M . H   armon

                                    Assistant A ttorney General
                                                  Office o f Legal Counsel




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