The Emoluments Clause: History, Law, and Precedents







Prepared for Members and Committees of Congress



With the announcements by President-elect Barack Obama that he intends to nominate several
Members of Congress to various positions in the Executive Branch, questions regarding their
constitutional eligibility in light of the plain language of the Emoluments Clause have been
raised. This report provides an historical review of the Emoluments Clause, focusing on the
debates at the time the clause was drafted, as well as the precedents adopted by Congress and the
executive branch with respect to nominations where the issue has arisen.
The report also contains a legal analysis of the issues raised by the clause and the so-called
“Saxbe Fix” — whereby Congress enacts a statute reducing the salary of the executive branch
position to the amount that was paid before the nominee with a potential conflict assumed his
legislative office. Application of the clause to the President-elect’s current designated
appointments indicates that “Saxbe Fix” legislation has been adopted for Senator Clinton, is
pending for Senator Salazar, and may be required for Representative Solis before they can receive
their respective positions.
The report also addresses the issue of Article III standing to bring a court challenge to either an
appointment, confirmation, or the “Saxbe Fix” legislation. Finally, the report raises an argument
based on the fact that the emoluments increase for Cabinet-level positions has been consistently
issued via Executive Order, and implements a preexisting statutory system authorizing regular
annual pay adjustments for government employees. As such, it may be possible to argue that the
salary increase is not the type of increase in emoluments that ought to trigger application of the
constitutional provision.






Introduc tion ..................................................................................................................................... 1
History of the Emoluments Clause..................................................................................................1
Precedents Related to the Emoluments Clause................................................................................4
William Paterson.......................................................................................................................4
Samuel J. Kirkwood..................................................................................................................5
Matthew W. Ransom.................................................................................................................5
Philander Chase Knox...............................................................................................................5
William S. Kenyon....................................................................................................................6
Hugo L. Black...........................................................................................................................6
Melvin R. Laird.........................................................................................................................7
William B. Saxbe......................................................................................................................7
Robert R. Casey........................................................................................................................8
Abner J. Mikva..........................................................................................................................8
Edmund Muskie........................................................................................................................9
Lloyd Bentsen...........................................................................................................................9
Interpretations of the Emoluments Clause.....................................................................................10
Textual Analysis......................................................................................................................10
Functional Interpretation and The “Saxbe Fix”......................................................................13
Application of the Emoluments Clause to President-Elect Obama’s Designees...........................15
Senator Hillary Rodham Clinton.............................................................................................15
Senator Ken Salazar................................................................................................................16
Representative Rahm Emanuel...............................................................................................16
Representative Ray LaHood...................................................................................................16
Representative Hilda Solis......................................................................................................17
Standing to Challenge Appointment or Confirmation...................................................................17
Automatic Annual Pay Adjustments and the Emoluments Clause................................................21
Author Contact Information..........................................................................................................24






In light of the announcements by President-elect Barack Obama that he intends to nominate 1
several Members of Congress to various positions in the Executive Branch, questions regarding
their constitutional eligibility in light of the plain language of the Emoluments Clause have been 2
raised. This report first provides an historical review of the Emoluments Clause, focusing on the
debates at the time the clause was drafted, as well as the precedents adopted by Congress and the
Executive Branch with respect to nominations where the issue has arisen.
The report follows with a legal analysis of the issues raised by the clause and the so-called
“Saxbe Fix” — whereby Congress enacts a statute reducing the salary of the executive branch
position to the amount that was paid before the nominee with a potential conflict assumed his
legislative office. Next, the report focuses on applying the clause to the President-elect’s current
designated appointments, noting that “Saxbe Fix” legislation has been adopted for Senator
Clinton, and that it may be adopted for other potential nominees as well.
The report also addresses the issue of Article III standing to bring a court challenge to either an
appointment, confirmation, or the “Saxbe Fix” legislation. Finally, the report raises an argument
based on the fact that the emoluments increases for Cabinet-level positions have been consistently
issued via Executive Order and implement a preexisting statutory system authorizing automatic
annual pay adjustments for government employees. As such, it may be possible to argue that the
salary increase is not the type of increase in emoluments that ought to trigger application of the
constitutional provision.

A review of the debates of the Constitutional Convention in 1787 reveals a nearly universal
agreement with respect to the general purpose of the Emoluments Clause. The delegates believed
that express protection against possible corruption of members of the legislature from the lure of
civil office was necessary. Specifically, the delegates feared that election to Congress would be
seen merely as a stepping stone to more lucrative public office and, that Members would use their
legislative positions to create or increase the compensation of such offices. In addition, the
delegates feared the growth of an overly powerful executive branch that could use the enticement
of public office to influence members of the legislature.
The text of the clause itself represents a compromise over an issue on which there was agreement
that disqualification from office was the proper method of redress, but disagreement with respect
to the proper duration of the disqualification. Initially, the prohibition was introduced as part of
the Virginia Plan, and would have rendered members of both houses “ineligible to any office
1
See, e.g., Jeff Mason and Caren Bohan,Obama Names Clinton, Gates to Lead Foreign Policy, Washington Post,
December 1, 2008, p. A1; Abdon M. Pallasch, “Obama Taps LaHood for Transportation Secretary, Chicago Sun
Times, December 19, 2008, available at, http://www.suntimes.com/news/politics/obama/1340477,barack-obama-ray-
lahood-transportation-121908.article (last visited Jan. 5, 2009).
2 See Al Kamen, “A Democratic Cabinet With a Liberal Return Policy, Washington Post, November 20, 2008, p.
A21; see also FoxNews.com, Problem with Clinton as Secretary of State?, http://www.foxnews.com/story/
0,2933,460724,00.html (last visited Dec. 3, 2008).





established by a particular state, or under authority of the United States, except those peculiarly
belonging to the functions of [each branch], during the term of service and for the space of 3
[unspecificied years] after its expiration.” Opposition arose to the proposal and an amendment
was offered to limit the prohibition by excluding those offices that were created “under the 4
national government.” The amendment generated considerable debate, with those, like Alexander 5
Hamilton, who favored a strong executive, in support, while those fearful of too much power 6
being allocated to the executive, such as George Mason, opposed. A compromise was drafted by
James Madison, who proposed that disqualification attach only in situations where an office was 7
created or the compensation of an existing office was increased. Ultimately the matter was
referred to the Committee on Detail, who reported out the following language:
The Members of each House shall be ineligible to, and incapable of holding any office under
the authority of the United States, during the time for which they shall respectively be
elected; and the Members of the Senate shall be ineligible to, and incapable of holding, any 8
such office for one year afterwards.
Limited debate followed the introduction of this language, but the proposal was tabled pending
further developments related to the distribution of power between the Senate and the Executive 9
with respect to the appointment power. When debate resumed, new language had been drafted by 10
the “Committee of Eleven” stating that
The Members of each House shall be ineligible to any civil office under the authority of the
United States during the time for which they shall respectively be elected — And no Person
holding any office under the United States shall be a Member of either House during his 11
continuance in office.
By the time this draft was introduced, it had been decided that the appointment power would be
divided with the President having the authority to make appointments, subject to the “advice and
consent” of the Senate. The new language addressed two issues: First, by continuing the ban
against the appointment of members of the legislature it addressed the issue of undue executive
influence; and, second, it introduced a new provision — namely, a prohibition against dual office 12
holding. The debate focused largely on the incapacity language, with amendments introduced to
limit the effect of the clause on only those offices “created during [a Member’s] respective term[]
of office.” Further compromise was sought with an amendment to the amendment urging that the
“incapacity ought at least to be extended to cases where salaries should be increased, as well as
3
1 MAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 217, 228-229 (1911) [hereinafter Farrand].
4 2 Farrand, supra note 3, at 379.
5 Id. at 377 (quoting Alexander Hamilton as being against “all exclusions and refinements, except only in this case; that
when a member takes his seat he would vacate every other office”).
6 Id. at 380-81 (quoting George Mason as arguing that the ineligibility clauseis the cornerstone on which our liberties
depend”).
7 Id. at 380.
8 Id. at 180
9 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, 120 (1974) [hereinafter Pollitt].
10 Id. (noting that the “Committee of Elevenwas composed of one member from each state).
11 2 Farrand, supra note 3, at 483.
12 See Pollitt, supra note 9 at 120.





created, during the term of the member.”13 Both of these amendments were adopted by a vote of 14
five states in favor and four against, with one state divided. The resulting language as ratified by
the states reads as follows:
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 increased during such time; and no Person
holding any Office under the United States, shall be a Member of either House during his 15
Continuance in Office.
From these debates, it may be fairly concluded that the consensus of the delegates was that it was
necessary to enact some prohibition on the eligibility of Members of Congress for executive
office to guard against the possibility of both office seeking and executive influence. It is also
clear that the compromise that was reached was based largely on a fear that a complete
disqualification during a term of office and for one year thereafter would materially affect not
only the supply of able men available to assume executive positions, but also the ability of the
legislature to attract capable individuals to run for office.
Moreover, the debates provide a strong indication that the prohibition ultimately agreed to was
intended to be absolute, as there is no indication of a contrary position. The debates indicate that,
at a minimum, what was sought to be prevented was a direct and blatant grant of legislative or
executive favor. Although the final language in the Constitution represents a compromise to
prevent total and permanent exclusion of worthy men from office, it was clearly intended to
prohibit the use of the appointment power by the executive to gain influence over the members of
the legislature.
Additional support for the position that executive influence in the form of offers for civil office
would not be effective during the term of individual Members is found in several post-convention
documents, including the Federalist Papers. For example, in Federalist No. 55, Madison sought to
meet the argument that the proposed House of Representatives had too few members to be
entrusted with the great powers it was granted. Madison utilized the purpose of the Emoluments
Clause in rebutting this contention as follows:
The Members of the Congress are rendered ineligible to any civil offices that may be created
or of which the emoluments may be increased, during the term of their election. No offices
therefore can be dealt out to the existing members but such as may become vacant by
ordinary casualties: and to suppose that these would be sufficient to purchase the guardians
of the people, selected by the people themselves, is to renounce every rule by which events
ought to be calculated, and to substitute an indiscriminate and unbounded jealousy with 16
which all reasoning must be in vain.
Alexander Hamilton, defending, in Federalist No. 76, the integrity of the Senate in the nomination
and confirmation process against speculation that undue influence would be brought upon it by
the President, relied in part upon the Emoluments Clause language. Hamilton wrote that
13
2 Farrand, supra note 3, at 490.
14 Id. at 492.
15 U.S. CONST. Art. 1, § 6, cl. 2.
16 THE FEDERALIST NO. 55 (James Madison), at http://avalon.law.yale.edu/18th_century/fed55.asp.





A man disposed to view human nature as it is, without either flattering its virtues or
exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate to
rest satisfied, not only that it will it be impracticable to the executive to corrupt or seduce a
majority of its members, but that the necessity of its co-operation in the business of
appointments will be a considerable and salutary restraint upon the conduct of that
magistrate. Nor is the integrity of the Senate the only reliance. The Constitution has provided
some important guards against the danger of executive influence upon the legislative body. It
declares 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 Emoluments whereof shall have been increased during such time; and no
Person holding any Office under the United States, shall be a Member of either House during 17
his Continuance in Office.
Finally, Joseph Story, in his Commentaries on the Constitution of the United States, described the
purpose of the Emoluments Clause as “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 18
disinterestedness.” Story, however, criticizes the prohibition on the grounds that it did not go far
enough in restricting a Member from appointment to civil office during his term in the legislature.
According to Story, this left “in full force every influence upon his mind if the period of his 19
election is short, or the duration of it is approaching its natural termination.” Thus, if evasions of
the clause are to take place they would have to take place after a Member’s term expired.

CRS research has discovered at least 12 instances of appointments in which issues related to the 20
Emoluments Clause have been raised. We will discuss each in chronological order.
The earliest identified instance of an Emoluments Clause issue arose when President George
Washington appointed then-Governor of New Jersey William Paterson to be an Associate Justice
of the United States Supreme Court. Governor Paterson had been a Member of the Senate when
the law creating the position was adopted, and although he had resigned from the Senate to
become Governor of New Jersey, the term for which he had been elected to the Senate would not
have ended until March 4, 1793. On February 28, 1793, President Washington notified the Senate
that “[i]t has since occurred that [Paterson] was a member of the Senate when the law creating
that Office was passed, and that the time for which he was elected is not yet expired. I think it my 21
duty therefore to declare, that I deem the nomination to have been null by the Constitution.”
17
THE FEDERALIST NO. 81 (Alexander Hamilton), at http://avalon.law.yale.edu/18th_century/fed81.asp.
18 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, § 864 (Da Capo Press Reprint ed.,
1970).
19 Id.
20 There appear to be two instances where Emoluments Clause issues existed but were never raised. They are,
therefore, not included in the list of precedents. The two instances are the appointment of Secretary of the Treasury Lot
M. Morrell in 1876 and Secretary of Transportation Brock Adams in 1977. See John F. OConnor, The Emoluments
Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 HOFSTRA L. REV. 89, 124 (1995) [hereinafter
OConnor].
21 See 1 THE DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES: PART I, APPOINTMENTS AND
PROCEEDINGS, 90 (Maeva Marcus & James R. Perry eds., 1985).





The President resubmitted the nomination on March 4, 1793, thereby avoiding any conflict with 22
the Emoluments Clause.
Samuel Kirkwood was elected a United States Senator from Iowa for a term which was due to
expire on March 3, 1883. Mr. Kirkwood resigned from the Senate in March of 1881, to accept the
position of Secretary of the Interior. In 1882, Mr. Kirkwood resigned that office to return to the 23
private sector. Congress, on May 15, 1882, created the Office of Tariff Commissioner, to which
Mr. Kirkwood was appointed by President Chester A. Arthur. An opinion was issued by Attorney
General Benjamin Harris Brewster concluding that Mr. Kirkwood was ineligible to receive the
appointment under the Emoluments Clause because the office was created “during the time for 24
which he was elected.” The fact that Mr. Kirkwood had resigned from the Senate prior to the
passage of the legislation did not, in the opinion of the Attorney General, absolve the appointment 25
of its constitutional infirmity.
Matthew Ransom was elected to the Senate in 1888 from North Carolina for a term that was due
to expire on March 3, 1895. During his term in the Senate, the Congress increased the salaries for 26
individuals serving in the diplomatic and consular service. On February 23, 1895, President 27
Grover Cleveland nominated Senator Ransom to service as Ambassador to Mexico and the
Senate confirmed. On March 4, 1895, the day after his Senate term expired, Senator Ransom took
the oath of office and his commission was presented the next day. Questions arose from the
“Auditor for the State and other Departments” regarding Senator Ransom’s qualification for
office and, therefore, his ability to draw a salary. Attorney General Holmes Conrad issued an
opinion stating that because Mr. Ransom’s appointment was made while he was a Senator in
Congress and it was “during that time the emoluments of the office of minister to Mexico were 28
increased, Mr. Ransom was not, in my opinion, eligible to appointment to that office.”
Philander Knox was elected to the Senate for a term that was scheduled to expire on March 4,

1911. In 1907, while Senator Knox was a member of the Senate, Congress increased the salary of 29


the Secretary of State from $8,000 to $12,000 annually. In 1909, President Taft expressed
interest in appointing Knox to the post of Secretary of State. Prior to any formal announcement of
22
Id. at 91.
23 See Act of May 15, 1882, chapter 145.
24 See 17 OP. ATTY GEN. 365 (1882) (stating that[t]he language is precise and clear, and, in my opinion, disables him
from receiving the appointment. The rule is absolute, as expressed in the terms of the Constitution, and behind that I
can not go, but must accept it as it is presented regarding its application in this case.”).
25 Id.
26 See 26 Stat. 1053 (increasing the salaries from $12,000 to $17,500 per annum).
27 At this time these positions were still formally titled envoy extraordinary and minister plenipotentiary.
28 21 OP. ATTY GEN. 211 (1895).
29 See Pollitt, supra note 9 at 131.





the appointment, legislation was introduced in the Senate that, upon enactment, would reduce the
salary of the Secretary of State to $8,000 per annum. Records of the floor debate in the House of
Representatives include an unofficial opinion from Assistant Attorney General Charles Russell 30
examining the question of the legislation’s compatibility with the Emoluments Clause. The
opinion notes that, according to the commentaries on the Constitution and the convention debates
the “sole purpose, of [the Emoluments Clause], was to destroy the expectation a Representative or
Senator might have that he would enjoy the newly created office or the newly created 31
emoluments.” Therefore, the unofficial opinion concludes that because the proposed legislation
would destroy any hope for a greater emolument than was available at the commencement of his
service in Congress the appointment carrying an unimproved salary “falls outside the purpose of 32
the law and is not within the law.”
In 1912, William Kenyon was elected to the Senate from Iowa for a term that was to expire on
March 4, 1919. During that term of office, Congress adopted legislation that increased the salaries
for circuit court judges. Senator Kenyon was reelected in 1918 to a term that was to expire March
4, 1925. In 1922, Senator Kenyon was nominated by President Warren G. Harding to be a United
States Circuit Judge on the Eighth Circuit Court of Appeals. After his confirmation, the President
requested an opinion from the Attorney General concerning Senator Kenyon’s qualifications for
office, specifically whether the Emoluments Clause made it impossible for Senator Kenyon to 33
serve on the court of appeals. Attorney General Harry Daugherty concluded that because the
emoluments of the judges were not increased during the same term of office in which Senator
Kenyon was appointed, but rather during a subsequent term, the Constitution did not preclude the 34
appointment.
Hugo Black was initially elected to the Senate in 1926 for a term due to expire on March 4, 1933.
He was reelected in 1932 for a term that was due to expire on March 4, 1939. In 1937, Congress
changed the law with respect to judicial pensions, raising the pension amount for Justices that
retired at age 70. Shortly thereafter, President Roosevelt nominated Senator Black to be an
Associate Justice of the Supreme Court. During Senator Black’s confirmation hearings, it was
argued that since retirement benefits for Supreme Court Justices over 70 had recently been
increased, he was constitutionally barred by the Emoluments Clause from taking the post. The
Senator’s supporters responded that he would not receive the increased pension until he turned
70, which, given that Senator Black was age 51, would be long after his senatorial term would
have expired. A lawsuit was filed in the United States Supreme Court challenging the
30
43 CONG. REC. 2402-03 (Feb. 15, 1909).
31 Id. at 2403.
32 Id.
33 See Pollitt, supra note 9 at 128.
34See 33 OP. ATTY GEN. 88 (1922) (stating that[i]f the framers of the Constitution had intended that in case the
emoluments of any office were increased during a term then being served by a United States Senator such Senator
would be precluded from being appointed to such office during a subsequent term to which he had been elected, more
apt language would have unquestionably been adopted.).





constitutionality of the appointment.35 It was dismissed by the Court, in a per curiam opinion, for 36
lack of standing.
Melvin Laird had been a Member of Congress since 1953 and had been reelected to serve in the st
91 Congress that was to begin on January 3, 1969. President-elect Richard M. Nixon, whose
term was to begin on January 20, 1969, had announced his intention to appoint Representative
Laird to the position of Secretary of Defense. An Emoluments Clause issue arose because in 1967 37
Congress had enacted the Postal Revenue and Federal Salary Act of 1967, which required the
President to make recommendations regarding federal salaries a part of his annual Budget th38
message, due to the Congress by January 17 of every year. Any recommended salary increases, st
pursuant to the act, would automatically take effect on March 1, unless Congress formally 39
disapproved prior to the effective date. Outgoing President Lyndon Johnson had recommended
salary increases for cabinet level appointees that were expected to be permitted by the Congress.
Thus, the question was put to the Attorney General, if Representative Laird took his seat in the st
91 Congress on January 3, resigned and was formally appointed, confirmed, and commissioned
Secretary of Defense after January 20, but before March 1, would the Emoluments Clause prevent
his ability to assume that office?
Attorney General Ramsey Clark concluded that the “constitutional language prohibits the
appointment of a legislator to an office the compensation of which ‘shall have been’ increased
prior to the making of such appointment. The ban clearly does not apply to an increase in 40
compensation which is proposed subsequent to the appointment.” Moreover, according to the
Attorney General, the Emoluments Clause is “inapplicable where, as here, it is possible but not
certain at the time of the appointment that a proposed salary increase for the appointee may 41
receive final approval at a future date.”
William Saxbe was elected to the Senate from Ohio in 1968 for a term that was to expire on
January 3, 1974. In December 1973, Senator Saxbe was appointed U.S. Attorney General by
President Nixon. Saxbe was to assume the position for Robert Bork, who had served as interim
Attorney General during the two months since the firing of Attorney General Eliot Richardson
and Deputy Attorney General William Ruckelshaus in the so-called “Saturday Night Massacre.”
During Senator Saxbe’s term in the Senate, as a result of the Postal Service Revenue and Federal
Salary Act of 1967, the salary for the Attorney General had increased from $35,000 to $60,000,
35
See Ex parte Levitt, 302 U.S. 633 (1937).
36 Id. (stating that[i]t is an established principle that to entitle a private individual to invoke the judicial power to
determine the validity of executive or legislative action he must show that he has sustained, or is immediately in danger
of sustaining, a direct injury as the result of that action and it is not sufficient that he has merely a general interest
common to all members of the public.”).
37 Postal Revenue and Federal Salary Act of 1967, P.L. 90-206, 81 Stat. 642 (1967).
38 Id. at § 225.
39 Id.
40 42 OP. ATTY GEN. 381-82 (1969).
41 Id.





thereby raising Emoluments Clause concerns.42 Legislation was introduced by the Nixon
Administration that sought to reduce the salary of the Attorney General to that which the office
commanded in 1969, the start of Senator Saxbe’s term. According to Acting Attorney General
Robert Bork, “[t]he purpose of the constitutional provision is clearly met if the salary of an office 43
is lowered after having been raised during the Senator’s or Representative’s term of office.” 44
After contentious floor debate, the bill passed both the House and Senate by wide margins.
Robert Casey was elected to the House of Representatives in 1958, and served consecutive terms
until 1975, when he was appointed to the Federal Maritime Commission by President Gerald
Ford. Because the salary for members of the Federal Maritime Commission had been increased
during Representative Casey’s most recent term, Attorney General Edward Levi submitted 45
proposed legislation intended to reduce the salary and qualify him for the seat. Unlike the
legislation qualifying Secretary of State Knox and Attorney General Saxbe, the version for 46
Representative Casey was more narrowly tailored to the specific appointment. Specifically, it
reduced the salary of only the Commission seat that Representative Casey was to assume and the 47
reduction was only temporary, expiring conterminously with Casey’s House term. After
adoption of the remedial legislation, Representative Casey was appointed and confirmed by the 48
Senate with no further discussion of the Emoluments Clause.
Abner Mikva was elected to the United States House of Representatives for a term that was due
to expire on January 3, 1981. On May 29, 1978, Representative Mikva was appointed to the
United States Court of Appeals for the District of Columbia Circuit by President Jimmy Carter.
Subsequent to his appointment, but before his confirmation, President Carter notified Congress of 49
a salary schedule change that included a pay raise for federal judges. Pursuant to the Postal
Revenue and Federal Salary Act of 1967, the pay raise was scheduled to take effect on October 1, 50
1979, unless Congress disapproved of the increase by joint resolution. Relying on previous
opinions of the Attorney General, the Office of Legal Counsel (OLC) issued an opinion 51
determining that Representative Mikva was constitutionally eligible to receive the appointment.
The rationale provided by OLC was that the plain language of the Emoluments Clause, through
the use of the phrase “shall have been increased,” requires the increase in emoluments to have
42
See generally, S. Rep. No. 499, 93d Cong. (1973).
43 Id. at 6.
44 See P.L. 93-178, 87 Stat. 697 (1975). The bill passed the House by a vote of 261-129, and the Senate by a vote of
75-10. 119 CONG. REC. 39,245 (1974) (House vote); 121 CONG. REC. 42,018 (1975) (Senate vote).
45 121 CONG. REC. 40,811 (1975).
46 Act of Dec. 31, 1975, P.L. 94-195, 89 Stat. 1108 (1975).
47 See id; see also OConnor, supra note 20 at 132.
48 See OConnor, supra note 20 at 132.
49 125 CONG. REC. 26,035 (1979).
50 Id. at 23,036.
51 See 3 Op. Off. Legal Counsel 286, 288 (1979); see also 3 Op. Off. Legal Counsel 298 (1979) (responding
specifically to arguments made by the National Rifle Association to Senator Joseph Biden).





occurred before the appointment.52 Since Representative Mikva’s appointment was made prior to
the increase in salary either being announced by the President or actually taking effect, he was not
barred from accepting his appointment. The OLC opinion also discusses the possibility of a
legislative fix; namely, exempting the judgeship to which Representative Mikva was appointed
from receiving the proposed salary increase. The opinion favorably cited the examples of both
Senators Knox and Saxbe for the proposition that such legislation is constitutionally 53
permissible.
Edmund Muskie was elected to the United States Senate from Maine in 1976 for a term that was
due to expire on January 3, 1983. In 1980, following the resignation of Secretary of State Cyrus
Vance, Senator Muskie was appointed Secretary of State by President Jimmy Carter. Because the
salary of the Secretary of State had been increased during Senator Muskie’s term, legislation was 54
adopted to reduce the salary and remove the disqualification. The legislation was consistent
with the precedents of Senators Knox and Saxbe as well as the 1979 OLC opinion related to the
appointment of former-Representative, then Judge Mikva.
Lloyd Bentsen was elected to the United States Senate from Texas in 1988 for a term that was due
to expire on January 3, 1995. In 1993, President William Clinton indicated that he intended to
nominate Senator Bentsen to be the Secretary of the Treasury. During Senator Bentsen’s term in
the Senate, however, the salary of the position had been increased pursuant to the procedures of 55
the Ethics and Government Reform Act of 1989. Legislation was adopted by the Congress that
reduced the salary of the Secretary of the Treasury to the level that it was in 1989 at the beginning 56
of Senator Bentsen’s term. The reduction was effective until either Senator Bentsen ceased his 57
service or the end of his Senate term, whichever came first. Rather than wait until President thth
Clinton was sworn into office on January 20, the legislation was signed into law on January 19
by outgoing President George H.W. Bush.
52
Id. at 288 (stating that[b]y using the future tense in referring to an appointment, while employing the future perfect
tense to refer to an increase in emoluments, 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 to that office.”).
53 Id. at 289-90 (stating that[i]t should be further noted that, contrary to the view expressed in the memorandum, 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.... Accordingly, even if a salary increase were to become
effective prior to the appointment of Representative Mikva, which is not the situation presently existing, he would not
thereby be necessarily barred from appointment.”).
54 See Act of May 3, 1980, P.L. 96-241, 94 Stat. 343 (1980).
55 Ethics and Government Reform Act of 1989, P.L. 101-194 § 703(a)(1), 103 Stat. 1748 (1989).
56 See Act of Jan. 19, 1993, P.L. 103-2, 107 Stat. 4 (1993).
57 Id. at § (a)(2).






A review of the historical documents indicates that the Emoluments Clause has traditionally been
interpreted in two ways. Prior to the appointment of Senator Knox, the dominant interpretation
was a strict textual basis reading of the clause and its requirements. During the debate over the
Knox confirmation and throughout subsequent appointments that have required a “Saxbe Fix,”
the preferred method of interpretation has centered around a more functional, purpose-based
approach. This report will discuss each of these interpretations.
A textual analysis of the meaning or application of the Emoluments Clause should begin with a
close examination of the plain text of the provision. Where those words are clear, unambiguous,
and not in conflict with any other provision of the document, the search for meaning does not 58
proceed further. As the Supreme Court stated in Lake Country v. Rollins,
The object of construction, applied to the constitution, is to give effect to the intent of the
framers and of the people in adopting it. This intent is to be found in the instrument itself;
and when the text of a constitutional provision is not ambiguous, the courts, in giving
construction thereto, are not at liberty to search for its meaning beyond the instrument. ...
There is even stronger reason for adhering to this rule in the case of a constitution than in
that of a statute, since the later is passed by a deliberative body of small numbers, a large
portion of whose members are more or less conversant with the niceties of construction and
discrimination and fuller opportunity exists for attention and revision of such a character,
while constitutions, although framed by conventions are yet created by the votes of the entire
body of electors in a State the most of whom are little disposed, even if they were able, to
engage in such refinements. The simplest and most obvious interpretation of a constitution if 59
in itself sensible, is the most likely to be meant by the people in the adoption.
A plain text reading of the Emoluments indicates that ineligibility for appointment to a civil office
attaches to all Members of Congress during the remainder of their term if a new office is created,
or if the compensation of an existing office increased during the term in which they are serving.
The text provides for no exceptions to this rule. Indeed, reference to the last clause of section 2,
“and no person holding any office under the United States shall be a member of either House 60
during his continuance in office,” lends further support to this construction. Taken in its entirety,
the Article I, section 6 reads as a consistent, unqualified prohibition against office holding under
strictly specified circumstances. When those circumstances are satisfied, a strict reading of the
clause renders the person ineligible for the appointment.
Early conflicts involving the Emoluments Clause support a strong textual application. As
discussed above, President Washington’s withdrawal of Justice Paterson’s appointment until his 61
term expired was based on a strict reading of the clause’s text. Moreover, several opinions by
58
130 U.S. 662 (1889).
59 Id. at 670-71.
60 U.S. CONST., Art. 1, § 6, cl. 2.
61 See 1 THE DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES: PART I, APPOINTMENTS AND
PROCEEDINGS, 90 (Maeva Marcus & James R. Perry eds., 1985) (quoting President Washington as stating that[i]t has
(continued...)





various Attorneys General also adhered to a strict interpretation of the clause’s text. For example,
in ruling that the resignation of then-Governor Kirkwood from the Senate prior to the passage of
legislation creating an office nevertheless does not cure the ineligibility, Attorney General
Benjamin Harris Brewster indicated that there was no need to go further than the text of the 62
Emoluments Clause. According to Attorney General Brewster,
it is unnecessary to consider the question of the policy which occasioned this constitutional
prohibition. I must be controlled exclusively by the positive terms of the provision of the
Constitution. The language is precise and clear, and, in my opinion, disables him from 63
receiving the appointment.
A similar textually based analysis was relied upon by Acting Attorney General Holmes Conrad
when advising as to whether the fact that Senator Ransom’s term had expired prior to his receipt
of his commission and his assumption the office of Ambassador to Mexico absolved him of any 64
conflict with the Emoluments Clause. Supporters of Senator Ransom’s appointment argued that
because the President did not actually sign the commission until after the Senator’s term had
expired, there was no conflict with the Emoluments Clause. The Acting Attorney General
disagreed, referring directly to the text he noted that, “it must be observed that the language of the
Constitution is that ‘no Senator shall, during the term for which he was elected, be appointed to 65
any civil office under the authority of the United States.’” Thus, the relevant fact for
Emoluments Clause analysis is not when the commission was signed by the President, but rather
when the appointment was made. In the case of Senator Ransom, because the appointment was
made during his term as a Senator in which the emoluments of the office were increased, he was, 66
according to the Acting Attorney General, ineligible to serve as Ambassador to Mexico.
Textually based analyses have been used to preserve Presidential appointments in the face of
Emoluments Clause challenges as well. In two instances after the enactment of the Postal 67
Revenue and Federal Salary Act of 1967, the Member receiving the appointment in question has
resigned from Congress after a emoluments increase has been announced, but prior to it
becoming law and taking effect. In the first instance, Attorney General Ramsey Clark utilized a
strict reading of the text of the Emoluments Clause to argue that Representative Melvin Laird was 68
eligible to be appointed Secretary of Defense. This interpretation prevailed despite the fact that

(...continued)
since occurred that [Paterson] was a member of the Senate when the law creating that Office was passed, and that the
time for which he was elected is not yet expired. I think it my duty therefore to declare, that I deem the nomination to
have been null by the Constitution.”).
62 17 OP. ATTY GEN. 365 (1882).
63 Id. at 366.
64 21 OP. ATTY GEN. 211 (1895).
65 Id. at 213 (emphasis in original).
66 Id. at 214 (stating thatI am of opinion, then, that Mr. Ransoms appointment as [Ambassador] to Mexico was made
on February 23, 1895; that that was during the time for which he was elected a Senator in Congress, and it appearing
from your letter that it was during that time the emoluments of the office of [Ambassador] to Mexico were increased,
Mr. Ransom was not, in my opinion, eligible to appointment to that office.”).
67 Postal Revenue and Federal Salary Act of 1967, P.L. 90-206, 81 Stat. 642 (1967). The act required the President to
make recommendations regarding federal salaries a part of his annual Budget message, which was due to the Congress th
annually by January 17. Id. at § 225. Any recommended salary increases, pursuant to the act, would automatically st
take effect on March 1, unless Congress formally disapproved prior to the effective date. Id.
68 42 OP. ATTY GEN. 381-82 (1969).





the President had included in his annual budget submission, while Representative Laird was still
serving as a Member, an increase in the salary for all Cabinet members. According to Attorney
General Clark, the “constitutional language prohibits the appointment of a legislator to an office
the compensation of which ‘shall have been’ increased prior to the making of such appointment.
The ban clearly does not apply to an increase in compensation which is proposed subsequent to 69
the appointment.” Given that Congress still legally possessed the power to disapprove of the
salary increases, the mere fact of their proposal prior to appointment created no constitutional 70
concerns. Therefore, the Attorney General concluded that the Emoluments Clause is
“inapplicable where, as here, it is possible but not certain at the time of the appointment that a 71
proposed salary increase for the appointee may receive final approval at a future date.”
In a similar situation, after Representative Abner Mikva’s appointment to the federal bench the
President announced that he was seeking an increase in the salaries for federal judges pursuant to
the Postal Revenue and Federal Salary Act of 1967. Relying on previous opinions of the Attorney
General, the Office of Legal Counsel (OLC) issued an opinion determining that, despite the fact
that he was still a Member of Congress when the salary increases were announced, 72
Representative Mikva was constitutionally eligible to receive the appointment. The rationale
provided by OLC was that the plain language of the Emoluments Clause, through the use of the
phrasing “shall have been increased,” requires the increase in emoluments to have occurred 73
before the appointment. Since Representative Mikva’s appointment was made prior to the
increase in salary either being announced by the President or actually taking effect, he was not
barred from accepting his appointment.
Commentators have concurred with the textual reading employed by the Attorney General and
Office of Legal Counsel in the Laird and Mikva cases, but nevertheless point out that such a 74
reading of the clause leaves the door open for potential abuse. The concern involves the fact that
it is the appointment that is the disqualifying event. Despite the fact that a plain reading of the
clause suggests that the disability lasts for the duration of a Member’s elected term, the gap in
time between the announced salary increase and its effective date created by the Postal Revenue
and Federal Salary Act of 1967 has created a situation where resignation from Congress is
possible to avoid an Emoluments Clause conflict. Specifically, the commentators point to the 75
appointment of Representative James F. Battin to be U.S. District Court Judge as an example.
Because Representative Battin’s appointment preceded the effective date of the salary increase, he
was able to resign from Congress, receive his commission, and take office all prior to the salary
increase taking effect. Thus, the Emoluments Clause was never applied to Representative Battin
because he was appointed before the disqualifying salary increase occurred. Had the salary
increase taken effect prior to his appointment, resignation would not have cured Representative
69
Id.
70 Id.(stating thatthe salaries in question will not ‘have been increased’ within the meaning of the constitutional
prohibition so long as Congress may still exercise its power of disapproval.”).
71 Id. at 382.
72 See 3 Op. Off. Legal Counsel 286, 288 (1979); see also 3 Op. Off. Legal Counsel 298 (1979) (responding
specifically to arguments made by the National Rifle Association to Senator Joseph Biden).
73 Id. at 288 (stating that[b]y using the future tense in referring to an appointment, while employing the future perfect
tense to refer to an increase in emoluments, 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 to that office.”).
74 See OConnor, supra note 20 at 119.
75 Id. at 119-20





Battin’s disability. Comparing this to the situation of Governor Kirkwood discussed above, leads 76
to an apparent conflict over the effect of resignation on a Member’s ineligibility. In that
situation, Governor Kirkwood had resigned from the Senate prior to the passage of the law which
created the office for which he was then appointed. Because the creation of the office occurred
during the term for which Governor Kirkwood was elected to the Senate, his resignation was of 77
no moment and he was held to be ineligible to have received his appointment.
No resolution has ever been sought to these conflicting results. This appears to be largely because
after the questions raised by the Mikva appointment, the President and Congress have sought to
avoid the application of the Emoluments Clause adopting a more flexible approach to its
interpretation, which has led to the enactment of legislation designed to cure any ineligibility.
As described by one commentator, the so-called “Saxbe Fix” is “legislation whereby Congress
purports to remove the disability of a Member for appointment to federal office by reducing the
emoluments of the office to the level the office commanded at the time the prospective nominee’s 78
term in Congress began.” Although named for its 1973 recipient, Senator William Saxbe, the
notion that Congress could cure an Emoluments Clause-based ineligibility by legislation was first 79
employed in 1909 with the appointment of Philander Knox to be Secretary of State.
The rationale for such a legislative solution is based on focusing the analysis on the word
“increased” in the clause itself. As the unofficial opinion from the Assistant Attorney General in
the Knox situation stated, “the sole purpose, of [the Emoluments Clause], was to destroy the
expectation a Representative or Senator might have that he would enjoy the newly created office 80
or the newly created emoluments.” Thus, if ineligibility is triggered by increases in
emoluments, then it stands to reason that subsequently reducing the emoluments, thereby
removing any benefit that the Member might receive by assuming the office, resolves the issue.
Such a focus on the “purpose” of the clause, as opposed to its text, was the basis for the opinions
expressed by President Nixon’s Department of Justice regarding the appointment of Senator
Saxbe to be Attorney General. According to statements made to the Senate by Acting Attorney
General Robert Bork, the Senate traditionally did not consider a Member of Congress to be
disqualified from a federal office unless the emoluments of that office were higher at the time of 81
appointment than they were at the start of the Member’s term of office. According to Acting
Attorney General Bork, “[t]he purpose of the constitutional provision is clearly met if the salary
of an office is lowered after having been raised during the Senator's or Representative’s term of 82
office.” Additional arguments made on behalf of the “Saxbe Fix” focused on the elimination of
76
See supra notes 5-6 and accompanying text.
77 See 17 OP. ATTY GEN. 365 (1882).
78 OConnor, supra note 16 at 122 (citing To Reduce the Compensation of the Office of Attorney General: Hearing on
S. 2673 Before the Senate Comm. on the Judiciary, 93d Cong., 2-3 (1973) (discussing whether constitutional
disqualification can be removed by legislation); id. at 53, 58 (remarks of Prof. Van Alstyne); id. at 69-74 (statement of
Asst. Att’y Gen. Robert G. Dixon, Jr.)).
79 See supra notes 29-32 and accompanying text.
80 43 CONG. REC. 2403 (Feb. 15, 1909).
81 S. Rep. No. 499, 93d Cong., 5-6 (1973) (statement of Acting Attorney General Robert C. Bork).
82 Id. at 6.





corruption in the appointment process. According to Assistant Attorney General Robert G. Dixon,
Jr., because the administration was pushing for all of the benefits to be removed prior to Senator
Saxbe assuming office, it could not use the increased salary as a basis for attempting to influence 83
or corrupt Senator Saxbe’s vote. Moreover, Assistant Attorney General Dixon argued that failure
to permit the legislation to pass would itself be a violation of one of the Emolument Clause’s
purposes, as it would result in the disqualification of a otherwise qualified Member of Congress 84
to serve in a civil office.
Duke University Professor of Law William Van Alstyne has argued that the only way to fully
effectuate the meaning of the Emoluments Clause is to abandon a literal reading of the text in
favor of an interpretation based solely on the clause’s purpose and intent. Specifically, Professor
Van Alstyne asserts that the purpose of the clause was to prevent any “improperly motivated 85
executive-legislative collaboration” that would result in a spoils system. Read literally, however,
the clause does not prevent such a system from being created by collusion between the two
branches. One way for the scheme to work would be for Congress and Executive to conspire to
permit an appointment of a Member of Congress and then, after the appointment, provide for a 86
lucrative emoluments increase. The only way, according to Professor Van Alstyne, to remedy
this concern is to permit the person to retain the office but not retain any of the “spoils” of post-87
appointment increases in emoluments. The “Saxbe Fix” achieves this goal as it not only
prevented Senator Saxbe from taking advantage of any increase in emoluments that were in effect
prior to his appointment, but it prevented him from benefiting from any post-appointment 88
increases as well until his term as a Senator would have expired.
It appears that the “Saxbe Fix” has not always been regarded as a remedy to an ineligibility
caused by the Emoluments Clause. As evidence, commentators point to the events that preceded
the appointment of then-Judge Robert Bork to fill the seat vacated when Associate Justice Louis 89
F. Powell, Jr. retired from the Supreme Court in 1987. According to the commentators, prior to
Judge Bork’s nomination, Senator Orrin Hatch was seriously considered to fill the vacancy,
however, he faced an Emoluments Clause conflict because the salaries of the Associate Justices 90
had been increased during the Senator’s current term. As part of the vetting process, President
Reagan’s Office of Legal Counsel apparently rendered an opinion that concluded “the Saxbe fix
could not erase that fact that the salary of Associate Justices had been increased during [Senator] 91
Hatch’s term, making him ineligible for appointment until his term ended in 1989.” The opinion
has never been made public and, as recounted by one commentator, a Freedom of Information Act
83
See id. at 71 (statement of Assistant Attorney General Robert G. Dixon, Jr.)
84 Id. at 68 (stating that “[n]either the public, 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.).
85 Id. at 50 (statement of Prof. William Van Alstyne).
86 Id. at 54.
87 Id. at 53.
88 See Act of Dec. 10, 1973, P.L. 93-178, 87 Stat. 697 (1973).
89 See Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 STAN. L. REV. 906, 911-12 (1994) [hereinafter
Paulsen]; see also OConnor, supra note 20 at 134.
90 See Paulsen, supra note 89 at 912.
91 OConnor, supra note 20 at 134 (citing Paulsen, supra note 89 at 912).





request for the memorandum was unsuccessful.92 In responding to the request, however, the 93
Department of Justice did indicate that such a document exists.
No court has ruled on the constitutional effect that a “Saxbe Fix” may have on an appointment or
confirmation, however, most of legal literature appears to take the position that the such 94
legislation does not cure the ineligibility. The primary basis for such arguments is that the
meaning of the clause’s text is clear and, thus, should be respected and applied literally. Phrased
another way, in this view, the clause does not permit Congress to create an exception to the
ineligibility created by an increase in the emoluments of a civil office during a Member’s term.
Note that none of these arguments suggest that the legislation itself is unconstitutional, rather they
question the effect that its passage has on the constitutional eligibility of the appointment. 95
Congress clearly has the constitutional authority, pursuant to the Appropriations Clause, to 96
amend or adjust the salaries of government employees for any reason it desires. The
constitutional question that the courts have yet to resolve is whether such an action by Congress
cures the apparent defect in the appointment created by the Emoluments Clause.


President-elect Barack Obama has announced his intention to nominate five individuals who were th
serving in the 110 Congress to senior positions in the Executive Branch to which Emoluments
Clause issues may arise. They include the following: Senator Hillary Rodham Clinton as
Secretary of State; Senator Ken Salazar as Secretary of the Interior; Representative Ray LaHood
as Secretary of Transportation; Representative Hilda Solis as Secretary of Labor; and
Representative Rahm Emanuel as White House Chief of Staff.
Senator Clinton was elected to the Senate from the State of New York in 2006 for a term that
began on January 3, 2007 and is due to expire on January 3, 2013. In both 2007 and 2008 Cabinet 97
officials received a pay increase pursuant to Executive Order. As a result, the emoluments of the
92
See Paulsen, supra note 89 at 913-14.
93 Id.
94 See Pollitt, supra note 9 at 120; see also Paulsen, supra note 89 at 908 (1994) (stating that[t]he unconstitutional
appointment of Lloyd Bensten is a rather disappointing parable about Our Inconvenient Constitution); OConnor,
supra note 20 at 135 (hypothesizing that[i]f the Supreme Court, or any court for that matter, were to consider the
merits of an appointment made under the auspices of the Saxbe fix, it probably would find the appointment
unconstitutional under the Emoluments Clause.”).
95 See U.S. CONST. Art. I, § 9, cl. 7 (stating thatNo Money shall be drawn from the Treasury but in Consequence of
Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public
Money shall be published from time to time.).
96 See United States v. Price, 116 U.S. 43 (1885) (holding that when Congress directs a specific sum to be paid to a
certain person, neither the Secretary of the Treasury nor any court has discretion to determine whether the person is
entitled to receive it); see also Allen v. Smith, 173 U.S. 389, 393 (1899); United States v. Realty Company, 163 U.S.
427, 439 (1896).
97 Executive Order, Adjustment of Certain Rates of Pay, available at, http://www.whitehouse.gov/news/releases/2008/
01/
(continued...)





Office of Secretary of State have increased during Senator Clinton’s current term of office.
Congress has already acted to address Senator Clinton’s situation by adopting S.J.Res. 46, which
reduces the pay of the Secretary of State to the level that it was on January 1, 2007, just prior to
the start of Senator Clinton’s term of office. Consistent with the Lloyd Bentsen precedent the 98
outgoing President, George W. Bush, signed S.J.Res. 46 into law on December 19, 2008.
Senator Salazar was elected to the Senate from Colorado in 2004 for a term that began on January
3, 2005 and is set to expire on January 3, 2011. Pay increases for Cabinet appointees have been
awarded in 2007 and 2008, thus, the emoluments of the Office of Secretary of the Interior have
increased during Senator Salazar’s term of office. Therefore, legislation that reduces the salary of
the Secretary of the Interior to the level that it was on January 1, 2005 is seen as necessary before
Senator Salazar can assume the office. As of the writing of this report, “Saxbe Fix” legislation for
Senator Salazar has been passed by both the House and the Senate and is currently being prepared 99
for the signature or veto of the President.
Representative Emanuel was elected to the House of Representatives from Illinois in 2008 for a
term that was to commence on January 3, 2009 and expire on January 3, 2011. Although the
position of White House Chief of Staff is not a cabinet position, it is a “civil office” and,
therefore, arguably the Emoluments Clause applies. On December 18, 2008, President Bush
signed an Executive Order that raised the salaries of individuals in the Senior Executive Service, 100
which includes the position of White House Chief of Staff. Pursuant to the Executive Order,
this increase took place on the first full pay period of 2009, which was January 4, 2009.
According to media reports, Representative Emanuel resigned his office effective January 3, 101
2009, prior to the pay raise becoming effective and prior to his term commencing. Therefore, it
appears that the Emoluments Clause will not affect his ability to assume office at all.
Representative LaHood was elected to the House of Representatives from Illinois in 2006 for a
term that commenced on January 3, 2007 and expired January 3, 2009. Representative LaHood th
did not seek election to the 111 Congress. Because his term of office will have expired before th
President-elect Obama is inaugurated on January 20 and has the legal authority to make his

(...continued)
20080104-6.html
98 See P.L. 110-455, ___ Stat. ____ (2008).
99 See S.J.Res. 3, 111th Cong. (2009).
100 See Executive Order, Adjustment of Certain Rates of Pay, § 2, available at, http://www.whitehouse.gov/news/
releases/2008/12/20081218-3.html (Dec. 18, 2008).
101 See, e.g., Carl Hulse, “Emanuel Formally Resigns from House Seat, The New York Times, Dec. 29, 2008,
available at, http://thecaucus.blogs.nytimes.com/2008/12/29/emanuel-formally-resigns-from-house-seat/ (last visited
Jan. 6, 2009).





appointment, it appears that the Emoluments Clause will not apply as there will have been no
increases of salary while Representative LaHood was a Member of Congress.
Representative Hilda Solis was elected to the House of Representatives from California in 2008
for a term that was to commence on January 3, 2009 and expire on January 3, 2011. On
December 18, 2008, President Bush signed an Executive Order that raised the salaries of Cabinet 102
officials. Pursuant to the Executive Order this increase took place on the first full pay period of
2009, which was January 4, 2009. Because Representative Solis has not resigned her
congressional seat, it may be argued that a pay increase will have taken place during her term and
prior to her appointment. Although Congress adopted a public law declaring that the first day of th103
the 111 Congress to be January 6, 2009, the Twentieth Amendment sets the official start date 104
for congressional terms to be January 3. Members’ terms run from that date and not the date
which they take the oath of office and are officially seated. Thus, it appears that an argument can
be made in favor of the Emoluments Clause’s application to Representative Solis and, therefore,
“Saxbe Fix” legislation reducing the salary of the Secretary of Labor to the level it was as of
January 1, 2009 may seen to be required. On the other hand, it appears possible to argue that
because all of the official actions related to the increase in the emoluments occurred during the th

110 Congress (i.e., the passage of legislation authorizing the pay increase and the signing of the th


Executive Order) and the appointment will not be effective until the 111 Congress, that the
clause does not apply and no “Saxbe Fix” legislation is necessary.


Much of the above discussion may ultimately prove to be “academic,” as it is unlikely that,
should an appointment and/or confirmation in violation of the Emoluments Clause occur, anyone
would have the requisite constitutional standing to bring a lawsuit challenging the action as
unconstitutional. The doctrine of standing is a threshold procedural question that does not turn on
the merits of a plaintiff’s complaint, but rather on whether the particular plaintiff has a legal right 105
to a judicial determination on the issues before the court. The law with respect to standing is a 106
mix of both constitutional requirements and prudential considerations. Article III of the
102
See Executive Order, Adjustment of Certain Rates of Pay, § 2, available at, http://www.whitehouse.gov/news/
releases/2008/12/20081218-3.html (Dec. 18, 2008).
103 See P.L. 110-430, 122 Stat. 4846 (2008).
104 See U.S. Const. Amend. XX (stating thatthe terms of Senators and Representatives at noon on the 3d day of
January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their
successors shall then begin).
105 See Flast v. Cohen, 392 U.S. 83, 99 (1968).
106 See Department of Commerce v. House of Representatives, 525 U.S. 316, 328-29 (1999). By law, Congress can
grant a right to sue to a plaintiff who would otherwise lack standing. According to the Court, however, such a law can
eliminate only prudential, but not constitutional, standing requirements. See Raines v. Byrd, 521 U.S. 811, 820 n.3
(1997). For example, in the Line Item Veto Act, which was the statute at issue in Raines, Congress had granted
standing to sue to “any Member of Congress or any individual adversely affected by” the act. See Line Item Veto Act,
P.L. 104-130, § 692(a)(1), 110 Stat. 1200 (1996). Of particular relevance to this inquiry, Congress has also statutorily
granted standing to challenge the use of statistical sampling methods in the census. See Department of Commerce v.
(continued...)





Constitution specifically limits the exercise of federal judicial power to “cases” and 107
“controversies;”thus, it has been said that “the law of Article III standing is built on a single 108
basic idea — the idea of separation of powers.” According to the Supreme Court, to satisfy the
constitutional standing requirements of Article III, “[a] plaintiff must allege personal injury fairly
traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the 109
requested relief.”
In addition to the constitutional questions posed by the doctrine of standing, federal courts have
also adhered to a well developed set of prudential principles that are relevant to a standing 110
inquiry. Similar to the constitutional requirements, these “judicially self-imposed limits on the
exercise of federal jurisdiction,” are “founded in concern about the proper — and properly limited 111
— role of the courts in a democratic society.” However, unlike their constitutional counterparts, 112
prudential standing requirements “can be modified or abrogated by Congress.” The prudential
components of the doctrine of standing require that (1) a plaintiff assert his own legal rights and
interests rather than those of third parties; (2) a plaintiff’s complaint be encompassed by the
“zone of interests” protected or regulated by the constitutional or statutory guarantee at issue; and
(3) courts decline to adjudicate “abstract questions of wide public significance which amount to
generalized grievances pervasively shared and most appropriately addressed in the representative 113
branches.”
There have been two attempts to bring cases alleging violations of the Emoluments Clause. The 114
first such case, Ex Parte Levitt, arose from the appointment of Senator Hugo Black to be an
Associate Justice of the United States Supreme Court. At the time of Senator Black’s
appointment, Congress had increased the amount of pension available to Justices who retired at
age seventy. As Mr. Black’s Senate term had not yet expired prior to his appointment, it was
asserted that the increased pension was an emolument which made him constitutionally ineligible.
Defenders of the appointment argued that inasmuch as Mr. Black was only fifty-one years of age
at the time, he would be ineligible for the “increased emolument” for nineteen years and,
therefore, as applied to him, it was not an increased emolument. A motion was filed in the United
States Supreme Court requesting that cause be shown as to why the appointment was not a
violation of the Emoluments Clause. The Court, in a per curiam opinion, dismissed stating that
the plaintiffs’ interest was insufficient as all they could demonstrate was that they were citizens 115
and members of the Supreme Court bar. The Court noted that

(...continued)
House of Representatives, 525 U.S. at 328-29.
107 U.S. CONST. Art. III, § 2 (stating thatThe judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made under their Authority, or ... — to Controversies to
which the United States shall be a Party;— to Controversies between two or more States;....)(emphasis added).
108 Raines, 521 U.S. at 820 (quoting Allen v. Wright, 468 U.S. 737, 752 (1984)).
109 Department of Commerce v. United States House of Representatives, 525 U.S. at 329 (internal quotations omitted).
110 Bennett v. Spear, 520 U.S. 154, 162 (1997).
111 Id.
112 Id.
113 Valley Forge Christian College v. Americans United for the Separation of Church and State, 454 U.S. 464, 474
(1982) (internal quotations omitted).
114 302 U.S. 633 (1937)
115 Id. at 634.





It is an established principle that to entitle a private individual to invoke the judicial power to
determine the validity of executive or legislative action he must show that he has sustained
or is immediately in danger of sustaining a direct injury as the result of that action and it is 116
not sufficient that he has merely a general interest common to all members of the public.
The second case, McClure v. Carter,117 involved the appointment of Representative Abner Mikva
to a seat on the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit).
Pursuant to the Postal Revenue and Federal Salary Act of 1967, President Carter notified 118
Congress of a salary schedule change that included a pay raise for all federal judges. According
to the terms of the act, the pay raise was scheduled to take effect on October 1, 1979, unless 119
Congress disapproved of the increase by joint resolution. On September 26, 1979, prior to the 120
raise taking effect, Judge Mikva was confirmed, resigned from the House, and commissioned.
Senator McClure, who opposed the nomination on the Senate floor on the grounds that it violated
the Emoluments Clause, proposed a jurisdictional statute that permitted challenges regarding th
judicial appointments to the D.C. Circuit during the 96 Congress to be heard in federal district 121
court by a special three judge panel. The three-judge district court that heard the case ruled that
Senator McClure, despite the jurisdictional statute adopted by Congress, did not have Article III
standing to challenge the appointment and confirmation of Judge Mikva. The court first addressed
Senator McClure’s standing without reference to the jurisdictional statute and concluded that the
Senator lacked a sufficient personalized stake in the outcome and, therefore, “a United States
Senator, suing in either his individual capacity or his official capacity as a senator, lacks standing 122
to challenge the validity of the appointment of a federal judge.” Next, the court considered
what effect, if any, the jurisdictional statute adopted by Congress had on Senator McClure’s
standing. According to the court,
Senator McClure, even with aid of the special jurisdictional statute on which he seeks to rely,
does not have standing to bring this suit.. ... The statute under which Senator McClure brings
this suit casts members of Congress in the role of special attorneys general, to plead before
this court for a second opinion as to whether their judgments were right in voting for or
against the confirmation of Judge Mikva. Under the Constitution, it was the duty of Congress
itself, in the first instance, to determine Judge Mikva's qualifications both on the merits and
on the issue of whether he was constitutionally eligible to serve as a judge. To allow
members of Congress to change hats, as it were, to plead the unconstitutionality of their own
acts before this court on the basis of an argument already debated in the Senate but lost there 123
by vote, would, we suggest, set a dangerous precedent.
It should be noted that although there are two cases challenging appointments on Emoluments
Clause grounds, neither was brought against appointments to positions in the Executive Branch.
Rather, both cases involved appointments to the judiciary. Thus, it may be possible to distinguish
these cases from the potential current situation. Depending on the specific circumstances, it may
116
Id. (citing Tyler v. Judges, 179 U.S. 405, 406; Southern Ry. Co. v. King, 217 U.S. 524, 534; Newman v. Frizzell, 238
U.S. 537, 549, 550; Fairchild v. Hughes, 258 U.S. 126, 129; Massachusetts v. Mellon, 262 U.S. 447, 488).
117 513 F.Supp. 265 (D. Idaho 1981) (three-judge court), aff’d sub nom., McClure v. Reagan, 454 U.S. 1025 (1981).
118 125 CONG. REC. 26,035 (1979).
119 Id. at 23,036.
120 McClure, 513 F.Supp at 266.
121 Act of October 12, 1979, P.L. 96-86, § 101(c), 93 Stat. 656 (1979).
122 McClure, 512 F.Supp. at 269.
123 Id. at 271.





be possible for a challenge to survive an initial standing analysis. For example, should a Member
be appointed and confirmed as a cabinet Secretary, a challenge could arise if the Secretary takes
an action that adversely affects the rights of an individual citizen. One example might be the
denial of a passport, export license, or other international travel-related document issued by the
Department of State. Thus, under those circumstances, it may be possible for an individual or
company to satisfy the Supreme Court’s test Article III standing analysis.
What appears more certain, however, is that Members of Congress who either vote against
“Saxbe Fix” legislation, or vote not to confirm individuals on Emoluments Clause grounds would
not have standing to challenge the appointments in court. In addition to the McClure decision,
which appears to foreclose Member standing with respect to the Emoluments Clause, in 1997, the 124
Supreme Court decided Raines v. Byrd, which presented a constitutional challenge to the Line 125
Item Veto Act. The Court, in an opinion by Chief Justice Rehnquist, held that plaintiffs, all of
whom were Members of Congress who had voted against the act, lacked standing because their
complaint did not establish that they had suffered an injury that was personal, particularized, and 126
concrete. The majority distinguished between a personal injury to a private right and an 127
institutional or official injury, holding that a congressional plaintiff may have standing in a suit
against the executive if it is alleged that the plaintiff(s) have suffered either a personal injury (e.g., 128
loss of a Member’s seat) or an institutional one that is not “abstract and widely dispersed,” but 129
rather amounts to vote nullification. As a result, it appears that a congressional plaintiff is more
likely to succeed in establishing standing where there is an allegation of a particular injury, as
opposed to an injury related to either a generalized grievance about the conduct of government, or 130
an injury amounting to a claim of diminished effectiveness as a legislator.While the Court in
124
521 U.S. 811 (1997).
125 Line Item Veto Act, P.L. 104-130, § 692(a)(1), 110 Stat. 1200 (1996).
126 Raines, 521 U.S. at 818-20. Although the holding was based on the Court’s finding that plaintiffs did not satisfy the
first standing requirement (personal injury), the Court questioned whether the plaintiffs could meet the second standing
requirement (that the injury be “fairly traceable” to unlawful conduct by the defendants) “since the alleged cause of ...
[plaintiffs] injury is not ... [the executive branch defendants] exercise of legislative power but the actions of their own
colleagues in Congress in passing the act. Id. at 830 n.11.
127 Justice Souter’s concurring opinion, seemed to attach less importance than the majority to the distinction between
personal and official injury, but he nevertheless agreed with the majority that the plaintiffs lacked standing. See id. at
831. Justice Breyer, however, dissented, arguing that there is no absolute constitutional distinction between cases
involving apersonal” harm and those involving anofficial harm, and would have granted standing. See id. at 841-
843. Unlike the majority, which viewed injury to a legislator’s voting power as an official injury, Justice Stevens, in his
dissenting opinion, asserted that a legislator has a personal interest in the ability to vote, and stated that deprivation of
the right to vote would be a sufficient injury to establish standing. See id. at 837 n.2
128 See Chenoweth v. Clinton, 997 F. Supp. 36, 38-39 (D.D.C. 1998), aff’d, 181 F.3d 112 (D.C.Cir. 1999) (holding that
personal injury claims are more likely to result in a grant of standing, but mere institutional injury is sufficient under
Raines); see also Planned Parenthood v. Ehlmann, 137 F.3d 573, 577-78 (8th Cir. 1998)(addressing the standing of
state legislators).
129 In 1939, the Court had held that Kansas state legislators had standing to bring suit against state officials to recognize
that the legislature had not ratified a proposed amendment to the United States Constitution. See Coleman v. Miller,
307 U.S. 433 (1939). The plaintiffs in Coleman included twenty state senators whose votes against the measure would
have been sufficient to defeat it, but whose votes were essentially nullified by the tie-breaking vote of the states
lieutenant governor, the presiding officer of the senate, in favor of ratification. In Raines, the Court distinguished the
injury alleged by the plaintiffs from the injury asserted in Coleman and, therefore, found it unnecessary to decide
whether Coleman might also be distinguished on other grounds. See Raines, 521 U.S. at 826. Therefore, Raines did not
address the question of whether Coleman would warrant granting standing in a suit by federal legislators even though
such an action raises separation of powers concerns not present in Coleman. See id. at 824, n.8.
130 See Raines, 521 U.S. at 822-24; see also Moore v. U.S. House of Representatives, 733 F.2d 946, 951-52 (D.C.Cir.
1984), cert. denied, 469 U.S. 1106 (1985).





Raines seemed prepared to recognize the standing of a Member based on a personal injury to a
private right, it nevertheless concluded that an injury to a legislator’s voting power is an official 131
injury.
Furthermore, it appears that the limits on Member standing established in Raines would likely
preclude a Member from obtaining standing in a suit to challenge an act of Congress — such as a 132
“Saxbe Fix” —because of the availability of legislative remedies, including, but not limited to, 133
the repeal or amendment of the act in question, which would prevent a court from finding vote
nullification. In addition, Raines appears to greatly restrict “standing to challenge executive 134
action, although there may be a better opportunity to achieve standing in this setting,” even in
cases where a plaintiff Member can show the nullification of a vote by the executive and, thus, 135
establish an institutional injury. Decisions of the D.C. Circuit that have followed Raines have
attempted to clarify both the meaning of “nullification,” as well as the status of pre-Raines Circuit
rulings. Regarding the meaning of the term “nullification,” the D.C. Circuit concluded in
Campbell v. Clinton that the availability of a legislative remedy precludes any finding of 136
nullification. With respect to the status of its pre-Raines rulings, a majority of the court of
appeals in Chenoweth v. Clinton believed that the Court’s decision in Raines has limited, but not 137
overruled, its precedent.


Another potential issue that may arise is whether the fact that the salary increase in question was
an annual pay adjustment — imposed by Executive Order pursuant to a previously enacted statute
— is of any constitutional significance. In 2008, Cabinet appointees received a pay increase 138
pursuant to an Executive Order dated January 4, 2008. The Order executed provisions of the
Consolidated Appropriations Act of 2008, which contained statutory language governing pay
131
See Raines, 521 U.S. at 820-21.
132 See WRIGHT, MILLER, AND COOPER, FEDERAL PRACTICE AND PROCEDURE § 3531.11, at 1 (2001 Supp.) [hereinafter
Wright & Miller].
133 See Raines, 521 U.S. at 824.
134 See Wright & Miller, supra note 132, at 1.
135 Congressional plaintiffs may name executive branch officials as defendants in suits alleging vote nullification by the
executive. See, e.g., Coleman v. Miller, 307 U.S. 433 (1939), aff’d 146 Kan. 390 (1937) (among the named defendants
were executive and legislative branch officials, including William M. Lindsay, “as Lieutenant Governor and President
ex officio of the Senate”); see also Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974). Congressional plaintiffs may
also name executive branch officials as defendants in suits challenging the constitutionality of an act of Congress. See,
e.g., Riegle v. Federal Open Market Committee, 656 F.2d 879, n. 6 (D.C. Cir. 1981), cert. denied, 454 U.S. 1082
(1981) (stating that[w]hen a plaintiff alleges injury by unconstitutional action taken pursuant to a statute, his proper
defendants are those acting unconstitutionally under the law ..., and not the legislature which enacted the statute.).
136 See generally, Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C. 1999), aff’d, 203 F.3d 19 (D.C. Cir.), cert. denied,
531 U.S. 815 (2000).
137 181 F.3d 112 (D.C. Cir. 1999).
138 Executive Order, Adjustment of Certain Rates of Pay, available at, http://www.whitehouse.gov/news/releases/2008/
01/
20080104-6.html





increases for FY2008.139 Rates of pay for Cabinet officials are a part of the Senior Executive 140
Service (SES), and are set directly by Executive Order, not fixed by statute. Nevertheless, 141
pursuant to statute, members of the SES are entitled to annual pay adjustments. Given the
manner in which the pay for Cabinet officials is determined, there is an argument that the increase
in salary was not subject to a vote in Congress and was not increased with any involvement
directly or indirectly by a sitting Member of Congress. Applying the less textually-based
interpretations that have guided the Congress with respect to the “Saxbe Fix,” it would seem
possible to argue that because the annual pay increases are automatic and based on a law passed th
well before the 110 Congress, the purpose of the Emoluments Clause is not violated.
The treatment of annual pay adjustments with respect to other parts of the Constitution would
also appear to be relevant to a discussion of their constitutional implications. Specifically, annual
pay adjustments and their effect on the 27th Amendment provide a potential analogous situation. th142
The 27 Amendment, commonly referred to as the “Madison Amendment,” which was not
ratified until May of 1992, provides that “[n]o law, varying the compensation for the services of
the Senators and Representatives, shall take effect until an election of Representatives shall have 143
intervened.” According to the Amendment’s author, its purpose was “to ensure that a
congressional pay increase ‘cannot be for the particular benefit of those who are concerned with 144
determining the value of the service.’” Thus, the Amendment does not prohibit the passage of
laws that adjust congressional pay, but instead governs the implementation of such laws by
requiring that they not take effect until after the next election of Members of the House.
To date, there appear to have been only two cases addressing the specifics of the 27th Amendment.
In the first, Boehner v. Anderson, 28 Members of Congress, 108 defeated congressional 145
candidates, and others, challenged provisions of the Ethics Reform Act of 1989 (ERA), th146
including the annual pay provision, as violating the 27 Amendment. The Federal District
Court for the District of Columbia held that the ERA, “in providing a methodology for automatic
annual adjustments to Congressional salaries meets both the language and the spirit of the 27th 147
amendment.”In addition, the court found that “any pay raises stemming from” the act satisfy 148
the terms of the Amendment. Furthermore, the district court questioned whether the th
“constitutionally-required delay” mandated by the 27 Amendment was applicable to the ERA, 149
which was enacted more than two years before the Amendment was ratified. Specifically with
respect to the annual pay provision, the court held that the ERA complied with the text of the
139
Consolidated Appropriations Act of 2008, P.L. 110-161 § 740, 121 Stat. 2031 (2007).
140 See 5 U.S.C. § 5382 (2006).
141 See 5 U.S.C. § 5303 (2006).
142 The amendment “was proposed to the Congress in 1789 by James Madison—along with eleven other amendments,
of which ten became the Bill of Rights.... ” Boehner, 30 F.3d at 159. For a detailed historical account of the
Amendment, see Bernstein, The Sleeper Wakes: The History and Legacy of the Twenty-Seventh Amendment, 61
FORDHAM L. REV. 497 (1992).
143 U.S. CONST. Amend. XXVII.
144 Id. (quoting James Madison, Speech in the House of Representatives, reprinted in, The Congressional Register (June
8, 1789)).
145 Ethics Reform Act of 1989, P.L. 101-194, 103 Stat. 1769 (1989).
146 Boehner v. Anderson, 30 F. 3d 156, 158 (D.C. Cir. 1994).
147 Boehner v. Anderson, 809 F. Supp. 138, 144 (D.D.C. 1992).
148 Id. at 142.
149 Id. at 142, n.3.





Amendment because the November 1990 congressional election “intervened” between the
enactment of the law in November 1989, and the effective date of the first annual pay adjustment 150
pursuant to the law, January 1991. Finally, the court held that each annual pay adjustment
“becomes effective by the terms of the 1989 Act” and “is not a law ... subject to the requirements 151
of the 27th amendment.” The Court of Appeals for the District of Columbia Circuit affirmed,
holding that “because the annual [pay adjustment]provision took effect after the 1990 election of 152
Representatives, it did not violate the twenty-seventh amendment.”
Several years later, in Schaeffer v. Clinton,153 a district court for the district of Colorado dismissed
a lawsuit similar to Boehner in that it also alleged that annual pay adjustments granted under the th
ERA are subject to the 27 Amendment and, therefore, unconstitutional. The district court
adopted the reasoning of the Boehner court with respect to the merits, stating that
Adjustments to congressional salaries under the Ethics Reform Act are not discretionary acts
of Congress. The adjustments are calculations performed by non-legislative administrative
staff, following a specific formula provided by Congress in the Act. Members of Congress
do not participate in the calculation of pay increases. In removing Members of Congress
from the pay adjustment process, the Ethics Reform Act accomplishes the goal of the
Founding Fathers manifested in the Twenty-Seventh Amendment. The Act eliminates the 154
possibility that Congress will grant itself a new pay raise during its current session.
The Court of Appeals for the Tenth Circuit affirmed the district court’s decision to dismiss not on
the merits, but rather on the ground that plaintiffs lacked the constitutionally required standing to 155
bring the suit.
Using this same rationale, namely, that automatic annual pay adjustments are non-legislative,
administrative increases following a preexisting formula, it appears possible to argue that they do
not present the same threat that the drafters of the Emoluments Clause feared. No vote is taken in
Congress and, therefore, no corruption or collusion with the Executive Branch is possible.
Moreover, the argument could be made that because the system of automatic annual pay th
adjustments was adopted prior to the 110 Congress, it is a violation of the clause’s compromise
to hold present Members ineligible based on a system they did not vote to establish, much less
vote to implement. In other words, to hold Members ineligible for mere annual pay increases to
other offices in the government acts as the very type of permanent disqualification that the 156
drafters of the Emoluments Clause so famously compromised to avoid.
Conversely, a committed textual interpretation of the Emoluments Clause would lead to the
argument that the plain language of the provision does not distinguish between legislatively
150
See id. at 142.
151 Id. at 143.
152 Bohener, 30 F.3d at 163; see also id. at 162.
153 54 F. Supp. 2d 1014 (D.Col. 1999), aff’d on other grounds, 240 F.3d 878 (10th Cir. 2001), cert. denied sub nom.,
Schaeffer v. O’Neill, 534 U.S. 992 (2001).
154 Id. at 1024.
155 See Schaeffer v. Clinton, 240 F. 3d 878, 886 (10th Cir. 2001) ), cert. denied sub nom., Schaeffer v. ONeill, 534 U.S.
992 (2001).
156 Harvard Professor and noted constitutional scholar Lawrence Tribe, in a weblog posting, has proposed a similar type
argument regarding the anticipated appointment of Senator Clinton to be Secretary of State. See Balkinization,
available at, http://balkin.blogspot.com/2008/12/is -hillary-clinton-unconstitutional.html (last visited Dec. 18, 2008).





enacted increases in emoluments and administrative increases. The clause clearly states that any
increase in emoluments “[d]uring the time for which he was elected” triggers a disqualification.
Thus, the fact that the increase was automatic or merely administrative is of no consequence. The
only factors that matter are that it occurred during the term and prior to the appointment.
Todd B. Tatelman
Legislative Attorney
ttatelman@crs.loc.gov, 7-4697