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June 23, 2009



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


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: " 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.

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