DOJ: Clinton, Salazar Constitutionally Eligible to Serve

Secretary of State Hillary Clinton and Interior Department Secretary Kenneth Salazar are not constitutionally disqualified to serve in executive offices, the Justice Department Office of Legal Counsel said in an opinion released this month.

President Barack Obama’s appointment of Clinton and Salazar, former U.S. senators, did not violate the constitution’s Ineligibility Clause, which bans a member of Congress from profiting from appointment to an executive office.

Legislation that rolls back the executive office’s salary prior to appointment of the member of Congress is enough to comply with the clause, according the OLC opinion. David Barron, acting assistant attorney general, wrote the opinion, which is dated May 20.

The OLC opinion was filed in the U.S. District Court for the District of Columbia on May 20, the same day Justice lawyers filed a motion to dismiss a suit that alleges Clinton is ineligible to serve as secretary of state despite the salary rollback legislation in December. The opinion (.pdf) was posted on the OLC home page earlier this month and marks the first published publicly under Attorney General Eric Holder Jr.

Barron wrote that “the practice of the political branches, over more than a century and after serious deliberation, supports the effectiveness of rollback legislation to achieve compliance with the Ineligibility Clause.”

In the 14-page opinion, Barron noted that an unpublished opinion written in 1987 by the Office of Legal Counsel took a counter position than the one the Justice Department is presenting in the latest opinion.

The older opinion, written by then-Assistant Attorney General Charles Cooper, argued, among other things, that rolled back salary is insufficient because Congress could restore the earlier salary the day after the appointment. “Thus, permitting this device to circumvent the Ineligibility Clause would largely render it a nullity,” Cooper wrote.

Barron explores two interpretations of the Ineligibility Clause—the “snapshot” view and the “on net” construction.

Under the “snap shot” perspective, a member of Congress is banned from appointment to an executive office if the office’s salary has ever been increased during the time the appointee was in Congress. A salary rollback isn’t good enough to satisfy the constitutional ban because the salary of the executive office still “increased” during the time the appointee was a member of Congress.

The “on net” view says that a member of Congress cannot be appointed to an executive post if the salary of the executive office is higher than at the start of the member’s term. “The ‘on net’ construction presents an entirely natural interpretation of the language,” Barron wrote.

The secretary of state’s salary jumped from $186,600 to $191,300 during Clinton’s second term as New York’s junior senator. Clinton got the lower compensation.

Barron argues that salary rollback legislation “advances the purposes of the Ineligibility Clause.” Members of Congress, he notes, cannot profit from salaries that were increased during the time for which the person was elected to serve.

At the end of the opinion, Barron lists seven occasions since the Civil War where Congress has rolled back the salary of an executive office to allow the appointment of a member of Congress. Clinton and Salazar are included on the list.

The conservative watchdog Judicial Watch filed suit in January in federal district court in Washington against Clinton and the State Department. Judge Reggie Walton has not ruled on the government’s motion to dismiss the suit.

Comments

[G]

Either nonjusticiability or standing. What harm befalls judicial watch if Clinton is appointed?

[Bob4232]

Yes, I believe that as things now stand, the salary roll-back practice is sufficient to render appointment of members of the Congress to executive positions constitutional. However, I think that the Founders did not anticipate the Union's current social and political situation which makes it attractive for a president to "buyout" a sitting legislator's weak re-election prospects in exchange for his/her votes in the past of before moving to the executive branch or perhaps to gain the hidden direct support of a legislator's spouse. We should take heed of the spirit in which Judge Learned Hand once wrote: "...as judges, we are not required to forget what we know about men as men."

This problem should be addressed by a Constitutional Amendment that should also ban spouses or near relatives succeeding members of Congress at least for the space of one full term. I suggest that the issue of term limits for members could also be addressed in the same Amendment. I would suggest a positive approach rather than a negative one by providing that all members be first elected to two year terms and if re-elected then serve a four year term and if again re-elected serve a six year term with a total incumbancy in Congress (embracing total service in both houses) of twelve years plus the remainder of any term to which appointed or elected by reason of vacency.

[Mike Stern]

No doubt the suit will be dismissed as non-justiciable, which is fortunate for DOJ, since its position on the Emoluments Clause is weak.