The Odd Clauses (3 page)

Although the framers were vague about a lot of this separation-of-powers stuff, they did fear a couple of practices so much that they decided to explicitly forbid them. Article I, Section 6, of the Constitution contains several of these prohibitions. That section, for example, says that members of the House and Senate may generally not be arrested when going to and from the Congress. It also says that these legislators may “not be questioned in any other place” for any “speech or debate” made in either the House or the Senate. The so-called ineligibility clause (which I'll say more about later) prohibits members of Congress from being appointed to any “civil Office” that was created or had its salary increased during the time the member of Congress was serving as a senator or representative. And then there is the most important of these separation-of-powers-fueled explicit prohibitions—the incompatibility clause of Article I, Section
6, which bars people like Jack Kemp and Lloyd Bentsen and John Ashcroft from remaining members of Congress after ascending to executive office:
No Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Did we need the incompatibility clause to prevent people from holding offices in both branches at the same time? A strong argument could be made that the Constitution's vague separation-of-powers provisions are themselves sufficient to prohibit dual-office holding, but it is simply impossible to know if the Supreme Court would have seen it that way. In any event, the framers were not willing to take any chances. They had seen the English kings bribe members of Parliament with plum executive positions, turning the legislature of that country into a steaming cesspool of corruption. They had seen the colonial governors do the same thing in the new country, filling the highest seats in the land with “bankrupts, bullies, and blockheads.” For most of the framers of the Constitution, the idea that a member of Congress could simultaneously serve as an executive official was so horrifying that they weren't about to leave the possibility up to the vicissitudes of the courts. They decided to outlaw the practice right there in the Constitution itself.

No Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
The incompatibility clause, then, is a rare example of an explicit constitutional prohibition that was intended to further the framers' vision of a government with separated powers. Later, I will come back to the question of whether a government with separate powers is really a good thing. First, though, a few words about what exactly the incompatibility clause prohibits.

According to the clause, if you are a member of Congress, then you cannot at the same time also be a “Person holding any Office under the United States.” Usually, the meaning of this phrase is pretty self-explanatory. Cabinet members, for example, hold offices under the United States. So do federal judges. Many important positions in the executive branch that don't quite make it to cabinet level are also covered by the clause. The undersecretary of agriculture for vegetables would be covered, for example, if there were such a thing. The Supreme Court has said, in other contexts, that “officers” are those government employees who exercise “significant governmental authority” and whose tenure, duties, and salary are set by statute. This covers a lot of top government employees, but not all of them. Your typical line attorney or policy wonk or maintenance worker probably does not “hold an office under the United States.” If Senator John Kerry wanted to take a job as a dessert chef in the Department of Transportation's employee cafeteria, for instance, and if his pastry-making skills were good enough to land him the job, nothing in the Constitution would stand in his way.

What about the president, though? Could a senator who wins the presidential election choose to remain a senator even after taking the presidential oath of office? Nobody has ever tried it, but some of the top legal scholars in the country have spent a lot of time arguing about the question. The main instigator of this debate is Seth Barrett Tillman, who is not himself a professor (at the time of this writing) but who has written more journal articles than most law professors will ever write in their lifetimes. Tillman is a master at parsing the precise wording of various odd constitutional clauses and coming up with ingenious and often counterintuitive arguments about their meaning. In a series of articles published in the journals of top law schools, he has compellingly (though by no means conclusively) argued that the president “presides
over
” the executive branch rather than being an officer
in
it, and therefore cannot be described as “holding an office
under
the United States,” which is what the incompatibility clause actually says. In response, a leading constitutional scholar named Sai Prakash from the University of Virginia's School of Law has argued that the president “occupies an office under the United States because he occupies an office created under the authority of the United States.”

From time to time, the issue of whether someone is an “officer” does find its way to some court. Indeed, the question once made it as far as the highest court in the land. Back in the early 1970s, an association of military reserve officers opposed to the Vietnam War sued more than one hundred members of Congress who were also reservists in the armed forces. The question under the incompatibility clause was whether somebody who held a commission in the military reserves was holding an “office under the United States.” The federal trial judge who heard the case held that a reservist position was an office and enjoined the members of Congress from continuing to hold commissions in the reserves. Among other things, the judge thought that, “given the enormous involvement of Congress in matters affecting the military, the potential conflict between an office in the military and an office in Congress is not inconsequential.” An appellate court agreed with the trial judge, and then the Supreme Court took the case to resolve the issue.

Despite the importance of the question, however, the Court never answered it. Instead, it dismissed the suit for lack of “standing.” The legal doctrine of standing has to do with whether a court thinks a particular plaintiff has suffered a concrete-enough injury to justify letting it bring the action. If this book were about “The Most Depressing Legal Doctrines” instead of “The Odd Clauses,” then there might be an entire chapter in here about this “standing” thing. Luckily for you, however, it isn't. Suffice to say that before the Supreme Court will let somebody sue the government, it must be convinced
that the plaintiff has experienced a very particular, superspecific, nonabstract, actual injury from the government's actions. In separation-of-powers challenges, where the argument is often just that the government is generally not following the requirements of the Constitution, it can be hard for the plaintiff to satisfy the Court's stringent standing requirements. As the Court put it in the reservist case: “[S]tanding to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share.” Nor was the Court moved by the fact that if these plaintiffs couldn't sue, probably nobody could sue. “The assumption that if respondents have no standing to sue, no one would have standing,” the Court empathetically remarked, “is not a reason to find standing.” As a result of the Court's stingy standing doctrine, a lot of fundamental separation-of-powers issues remain surprisingly unresolved to this day.

Here's a question that sort of mirrors the old “If a tree falls in the forest and nobody hears the tree fall in the forest, has a tree really fallen in the forest?” bit: If a tree that works for the federal government thinks that something it is about to do is unconstitutional, but knows that no court is likely to ever order it not to do it, maybe because of a really depressing legal doctrine like standing, can the tree go ahead and do it anyway? The answer is no, and not just because trees can't work for the government. Government officials, regardless of what branch they serve in (that's a pun), all take an oath to uphold the Constitution. They are therefore obligated to act consistently with the Constitution's requirements. Of course, an executive official or a member of Congress might knowingly do something unconstitutional and still end up not getting
in trouble or being fired because of it, but that doesn't mean the action was any more legal or legitimate than robbing a bank and not getting caught.

It is gratifying that in the United States, both the legislative and executive branches have offices whose duties involve advising members of those branches on whether something they want to do is legal, regardless of what, if anything, a court might have to say about the issue later. In the executive branch, the office that performs this function is the Office of Legal Counsel. Unlike the courts, the OLC writes opinions about separation-of-powers issues all the time. At the beginning of the Obama administration, the office was asked to consider whether Hillary Clinton's appointment to be secretary of state violated the Constitution's separation-of-powers commands. The potential problem with her appointment has to do with the ineligibility clause, mentioned earlier. This clause, which immediately precedes the incompatibility clause in Article 1, Section 6, and is often lumped together with it, says the following: “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 encreased during such time.” In other words, no member of Congress can take an office if that office was created, or its salary was increased, while the member was sitting in the legislature. Putting the incompatibility and ineligibility clauses together, then, a member of Congress can never serve as an executive official at the same time that she is also sitting in Congress, and she cannot quit her position in Congress to take an executive office if that office was created, or its salary was increased, while the member had been sitting in Congress.

Well, obviously the position of secretary of state was not created while Hillary Clinton was serving as one of New York's two senators, but the secretary's salary
was
increased
by an executive order that President George W. Bush signed in 2008. Doesn't this mean, then, that Hillary Clinton's appointment as secretary of state violated the ineligibility clause, and that she could not legally be appointed to that position until 2013, when her term as senator was set to expire?

It turns out that this conundrum has come up several times in US history, and the executive branch has flip-flopped all over the place about what to do about it. In the beginning, the executive took a strong tack against nominating someone who seemed to violate the ineligibility provision. President Washington, for example, withdrew the nomination of a senator to be a Supreme Court justice when he realized the position had been created while the senator had still been in office. About a hundred years later, Attorney General Benjamin Brewster wrote an opinion explaining that a senator could not be appointed to a tariff commission because the commission had been created before the senator's term had expired (even though the senator had resigned prior to the creation of the office). Brewster recognized that there couldn't have been any real conflict-of-interest problem, given the time of the senator's resignation, but he took what we could call these days a hard-core “textualist” position on the meaning of the ineligibility clause. “I must be controlled exclusively by the positive terms of the provision of the Constitution,” the attorney general wrote. “The language is precise and clear, and in my opinion, disables [the ex-senator] from receiving the appointment.”

Now let's add a twist. What should happen if, after Congress raises the salary of an office, it then passes a law reducing the salary back to where it was in the first place? Can a member of Congress who was sitting when the salary raise was passed take the office or not? Does the subsequent law reducing the salary back to its original level fix the problem? On the one hand, the salary of the office had been increased
while the member was sitting in Congress, but on the other hand, by the time the member takes the office, the salary will be back where it was prior to the increase. It's a hard question, and not just an academic one. Indeed, this precise scenario, which is what happened with Secretary Clinton, has occurred many times over the years. The first time it came up, the question was whether President Richard Nixon could appoint Senator William Saxbe to be his attorney general, even though Congress had increased the AG's salary from $35,000 a year to $60,000 a year while Saxbe was a senator, on the grounds that Congress had subsequently passed a law lowering the AG's salary back to $35,000. Again, it would seem that the rationale for the ineligibility prohibition—to prevent the conflict-of-interest scenario where Congress raises the salary of an office so that a member of Congress can then take the position and buy himself a new Jaguar with the difference—doesn't apply, since after the subsequent legislation there's no money anymore with which to buy a new Jaguar. On the other hand, the ineligibility clause does seem to establish a categorical ban: “No Senator . . . shall be appointed” to any office which has had its salary raised during the senator's term in office.

The problem illustrates a recurring one in constitutional law generally—should constitutional interpretation be
pragmatic,
looking at mushy things like the consequences of interpreting a constitutional provision in a certain way, or should it be purely
textual,
looking just at the language of the document plain and simple? One of the most prominent textualists of all time is Robert Bork, who thinks our society is slouching toward Gomorrah and whose nomination to the Supreme Court was famously rejected by the Senate back in 1987. Weirdly, however, it was Bork who first defended the so-called Saxbe fix back when he was serving as the acting attorney general in 1973, a job that he got because he was the only official in the Nixon Justice Department willing to
fire Special Prosecutor Archibald Cox during the Watergate scandal. “The purpose of the constitutional provision,” Bork testified at Saxbe's confirmation hearing, “is clearly met if the salary of an office is lowered after having been raised during the Senator's or Representative's term of office.”