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UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

DAVID RODEARMEL,  
Plaintiff,  No. 1:09-cv-00171-RBW-JR  Honorable Karen LeCraft Henderson  
HILLARY RODHAM CLINTON, al.  Honorable James Robertson  Honorable Reggie Walton  
Defendants.  

____________________________________ 
DEFENDANTS MOTION DISMISS 
Pursuant Federal Rules 12(b)(1) and 12(b)(6), Defendants hereby move the Court dismiss Plaintiffs Complaint with prejudice. The bases for this Motion are set forth the accompanying Memorandum. May 20, 2009 Respectfully submitted, 
TONY WEST 
Assistant Attorney General JEFFREY TAYLOR United States Attorney 
JENNIFER RIVERA 
Branch Director SUSAN RUDY Assistant Branch Director
   /s/ Jeffrey Smith                     
JEFFREY SMITH (D.C. Bar 467936) ERIC SOSKIN (PA Bar 200663) United States Department Justice Massachusetts Ave., NW, Washington, D.C. 20001 Tel: (202) 514-5751 Fax: (202) 616-8202 
Counsel for Secretary State Hillary Rodham Clinton and the United States Department State 
UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

DAVID RODEARMEL,  
Plaintiff,  No. 1:09-cv-00171-RBW-JR  Honorable Karen LeCraft Henderson  
HILLARY RODHAM CLINTON, al.  Honorable James Robertson  Honorable Reggie Walton  
Defendants.  

____________________________________ 

MEMORANDUM SUPPORT DEFENDANTS MOTION DISMISS 
TONY WEST Assistant Attorney General 
JEFFREY TAYLOR United States Attorney 
JENNIFER RIVERA Branch Director 
SUSAN RUDY Assistant Branch Director 
JEFFREY SMITH (D.C. Bar 467936) ERIC SOSKIN (PA Bar 200663) Attorneys United States Department Justice Civil Division, Federal Programs Branch Massachusetts Ave., NW, Washington, D.C. 20001 Room 7144 Tel: (202) 514-5751 Fax: (202) 616-8202 
Counsel for Secretary State Hillary Rodham Clinton and the United States Department State 

TABLE CONTENTS 

2BACKGROUND............................................................... 
5ARGUMENT..................................................................

5Plaintiff Lacks Standing Challenge Secretary Clintons Appointment..............

7Plaintiff Has Not Alleged Concrete and Particularized Injury............... 
7Plaintiff Has Not Alleged Concrete Injury........................ 

Plaintiff Has Not Alleged Injury that Particularized 
01as Him .................................................. Plaintiffs Supposed Injury Not Judicially Redressable. 
21.................

Plaintiffs Injury Cannot Redressed Through 
31Injunction Directed the Secretary State....................... Plaintiffs Injury Cannot Redressed Through 
71Order Directed the Department State........................ Plaintiffs Injury Cannot Redressed Through 
81Declaratory Judgment........................................

II. Plaintiffs Complaint Fails State Claim Upon which Relief May 
12Be Granted Because Secretary Clinton Has Properly Been Appointed............... Because There Was Net Increase the Emoluments the Office Secretary State During Secretary Clintons Senate Term, Her Appointment Consistent with the Plain Language 
12of the Ineligibility Clause........................................... The Purpose the Ineligibility Clause Demonstrates that Bars Appointment Only Where the Emoluments Have Been 
52Increased Net During the Members Current Term..................... Consistent Constitutional Practice Demonstrates that the Ineligibility Clause Bars Appointment Only Where the Emoluments Have Been Increased Net During the 
23Members Current Term............................................
83CONCLUSION...............................................................

TABLE AUTHORITIES 
CASES PAGE(S) 

Aetna Life Ins. Co. Hartford, Conn. Haworth,300U.S.227(1937)...................

Alden Maine,527U.S.706(1999). ............................................. ................................................737(1984)S.,468UAllen Wright

Andrade Lauer,729F.2d1475(D.C.Cir.1984).................................16, 

ASARCO Kadish,490U.S.605(1989) 
........................................... 

Baker GMC,522U.S.222(1998)...............................................

Bell Maryland,378U.S.226(1964)............................................. ......................................236(1968)S.,392UBoard Education Allen

Board Educ. New York State Teachers Retirement Sys., ............................................ ..................................................1995)3d106(2dCir.60F

Bowsher Synar,478U.S.714(1986).

Buckley Valeo,424U.S.1(1976)...............................................

Clinton Jones,520U.S.681(1997)..............................................

Cole Richardson,405U.S.676(1972)..........................................8, 

Bergen Edenfield,701F.2d906(11thCir.1983)...................................

Doe Chao,540U.S.614(2004).
7.................................................

Edmond United States,520U.S.651(1997)....................................... parte Levitt,302U.S.633(1937)..............................................6, Florence Frontier Airlines, Inc., 2003 U.S. Dist. LEXIS 25750 
(N.D.Tex.2003)........................................................

Franklin Sav. Ass'n Director, Office Thrift Supervision, 
740F.Supp.1535(D.Kan.1990)...........................................

Franklin Massachusetts, 505 U.S. 788 (1992)...................................19,

Frothingham Mellon, 262 U.S. 447 (1923)........................................

Hein Freedom From Religion Foundation, 551 U.S. 587, S.Ct. 2553 (2007).............. F.3d (D.C. Cir. 1995)....................Humane Socy United States Babbitt Hampton, Jr., Co. United States, 276 U.S. 394 (1928). .......................

81, 365 F.3d 1108 (D.C. Cir. 2004)...........................Judicial Watch, Inc. DOJ

Lujan Defenders Wildlife, 504 U.S. 555 (1992). ................................5, 

McCabe Atchison, Co., 235 U.S. 151 (1914)............................

McClure Carter, 513 Supp. 265 (D. Idaho 1981),affd sub nom. 
6...................................... 1025 (1981)S., 454 UMcClure Reagan

Metropolitan Washington Airports Authority Citizens for Abatement Aircraft Noise, 501 U.S. 252 (1991).......................................

Mississippi Johnson, U.S. 475 (1866).
.........................................
Mistretta United States, 488 U.S. 361 (1988)......................................

Morrison Olson, 487 U.S. 654 (1988)............................................

Myers United States, 272 U.S.52 (1926)..........................................

MCulloch Maryland, U.S. 316 (1819)..................................... passim Navy Chaplaincy, 534 F.3d 756 (D.C. Cir. 2008).
8.................................

Newdow Eagen, 309 Supp. (D.D.C. 2004),appeal dismissed, 
No. 04-5195, 2004 1701043............................................

Nguyen United States, 539 U.S. (2003). ....................................15, 

Nixon Fitzgerald, 457 U.S. 731 (1982)
..........................................
North Shore Gas Co. Salomon, Inc., 152 F.3d 642 (7th Cir. 1998)......................

Olympic Federal Savings and Loan Assn Director, Office Thrift Supervision, 
732 Supp. 1183 (D.D.C. 1990). ..........................................

Powell McCormack,395U.S.486(1969)......................................32, 
Rae Johnson,1993WL544295,at *1(D.D.C.Dec.22,1993)......................16, 
Raines Byrd,521U.S.811(1997)..............................................5, ................................................312(1991)S.,501URenne Geary

Ritter United States,84Ct.Cl.293(Ct.Cl.1936). .................................

Robidoux Celani,987F.2d931(2dCir.1993).....................................

Ryder United States,515U.S.177(1995)......................................14, ......................................2001)3d878(10thCir.240FSchaffer Clinton,

Schlesinger Reservists Comm. Stop the War, 418U.S.208(1974)................ passim Sealed Case,121F.3d729(D.C.Cir.1997).
....................................
Seminole Tribe Florida Florida,517U.S.44(1996). ............................. ............................26(1976)S.,426USimon Eastern Ky. Welfare Rights Org.

South Lake Tahoe California Tahoe Regional Planning Agency, 
625F.2d231(9thCir.1980)............................................... .........................83(1998)S.,523USteel Co. Citizens for Better Environment

Swan Clinton,100F.3d973(D.C.Cir.1996)...................................13, 

U.S. Term Limits Thornton,514U.S.779(1995)................................26, 

United States Classic,313U.S.299(1941).

.......................................

Valley Forge Christian College Americans United for Separation Church and State,454U.S.464(1982)..................................8, 11, 
Vt. Agency Natural Res. United States rel. Stevens, 529U.S.765 (2000)..........6, 

Warth Seldin,422U.S.490(1975)Wilton Seven Falls Co.,515U 
.............................................. 

.S.277(1995). .....................................

Youngstown Co. Sawyer, 343U.S.579(1952).....................................

UNITED STATES CONSITUTION 
U.S.Const.Art.I,6,cl.2.................................................. passim 

U.S.Const.Art.I,8,cl.18.....................................................

U.S.Const.Art.III......................................................... passim 

8...........................................................VI,3.Art.ConstU.S

STATUTES .................................................................33315U.S.C

35Stat.184(1908).35Stat.845(1909). 
............................................................ 
............................................................ 

94Stat.343(1980).
............................................................
103Stat.1748(1989)...........................................................

107Stat.4(1993).

.............................................................
122Stat.5036(2008)....................................................... passim 

123Stat.3(2009).
.............................................................

D.C.Stat.16-3502-3503......................................................

LEGISLATIVE MATERIAL 

43Cong.Rec.2390(1909)......................................................

43Cong.Rec.2402(1909)......................................................

43Cong.Rec.2415(1909)......................................................

44Cong.Rec.6-7(1909).
.......................................................
119Cong.Rec.37,017(1973)....................................................

119Cong.Rec.38,315(1973)....................................................

119 Cong. Rec. 39,234 (1973)....................................................

121 Cong. Rec. 42,018 (1975).................................................34, 

121 Cong. Rec. 42,158 (1975)....................................................

126 Cong. Rec. 10,279 (1980)....................................................

139 Cong. Rec. 389 (1993)......................................................

2........................................... 10, 2008)01 (Dec-. D1314. Rec 154 Cong

2........................................... 10, 2008)03 (Dec-. S10885. Rec154 Cong

155 Cong. Rec. S663 (Jan. 20, 2009). .............................................

155 Cong. Rec. S679 (Jan. 21, 2009). .............................................

155 Cong. Rec. S693 (Jan. 21, 2009). ..........................................36, Hearing Before the Committee the Judiciary 2673, 93rd Cong., 69-74 (Nov. 19, 1973). ..........................34, Hearing Before the Committee Post Office 
73and Civil Service 2673, 93rd Cong. (Nov. 18, 1978)........................

Senate Report 93-499 (Nov. 13, 1973). ............................................

MISCELLANEOUS Op. O.L.C. 286 (1979)........................................................ Op. O.L.C. 298 (1979)........................................................

The Federalist No. (Madison)..................................................

The Federalist No. (Hamilton).................................................

Hays History Chichester, 1804 (West Sussex Co. and 
Diocesan Record Office 1974)..............................................

32History Europe, Edinburgh Annual Register 305 (1816)............................ Farrand, Records the Federal Convention 1787 (1966 ed.).................... passim Farrand, Records the Federal Convention 1787 (1966 ed.).. passim Jeong Hong-Lee, The Have Perfect Old English Studies the History the English 
42Language (Donka Minkova and Robert Stockwell, eds., 2002)....................

Joseph Story, Commentaries the Constitution the United 
03States,  864 (1970 ed.)..................................................

Memorandum for the Attorney General, from David Barron, Acting Assistant Attorney General, Office Legal Counsel, 
Re: Validity Statutory Rollbacks Means Complying (May 20, 2009) ..................................with the Ineligibility Clause

Memorandum for the Counselor the Attorney General, from Charles Cooper, Assistant Attorney General, Office Legal Counsel, Re: Ineligibility Sitting Congressman 
73(Aug. 24, 1987) .....................to Assume Vacancy the Supreme Court 
New Shorter Oxford English Dictionary 1342 (3d ed. 1993).......................... 

Opposition the Excise Law Pennsylvania, reprinted American 
42State Papers 037, Misc. Vol. Cong., Session (Pub. No. 56)................

Rodney Huddleston and Geoffrey Pullum, The Cambridge Grammar 
32of the English Language (2002).............................................

Rodney Huddleston and Geoffrey Pullum, Students Introduction 
32to English Grammar 116-17 (2005)........................................

Samuel Johnson, Dictionary the English Language (1804). ........................ 

Plaintiff requests that this Court render advisory opinion Constitutional issue, and doing so, upset century practice the political branches.  This Court should deny Plaintiffs request because Plaintiff lacks Article III standing and, result, the Court does not have jurisdiction over his claims.  Moreover, even this Court had jurisdiction, Plaintiffs claims lack legal merit. 
Plaintiff asks this Court remove Secretary State Hillary Rodham Clinton from office because believes that her appointment was unconstitutional.  However, Plaintiffs Complaint points action Secretary Clinton that aggrieves him, nor any concrete particularized harm that inures him from her appointment.  His alleged psychic injury from observing what believes Constitutional violation clearly insufficient give him standing.  Further, this so-called injury not judicially redressable, the relief sought Plaintiff would require the Court usurp the Presidents exclusive removal power.  Because Plaintiff lacks standing, his claims should dismissed. 
Even Plaintiff had standing, moreover, his complaint without merit.  Congress anticipated the precise potential constitutional issue with Secretary Clintons appointment that Plaintiff raises the lawsuit, and passed statute with the purpose remedying any problem. Congresss statutory solution hardly novel, having been employed multiple times the past hundred years resolve this potential constitutional issue.  More importantly, examination the clauses text, purpose, and history leads the inevitable conclusion that the legislative solution satisfied the purpose the Ineligibility Clause and ensured Secretary Clintons eligibility for appointment. 

BACKGROUND January 2007, Hillary Rodham Clinton began her second term elected United States Senator representing the State New York.  See Compl.  late 2008, President-Elect Obama announced his intention nominate Senator Clinton the Nations 67th Secretary State. December 10, 2008, both Houses Congress passed, without opposition, statute entitled Compensation and Other Emoluments Attached the Office Secretary State.  Pub. 110-455, 122 Stat. 5036 (codified U.S.C.  5312 note) (hereinafter Secretary State Emoluments Act); 154 Cong. Rec. S10885-03 (Dec. 10, 2008); 154 Cong. Rec. D131401 (Dec. 10, 2008). President George Bush signed the Secretary State Emoluments Act December 19, 2008. 
The Secretary State Emoluments Act provides The compensation and other emoluments attached the office Secretary State shall those effect January 2007, notwithstanding any increase such compensation and emoluments after that date under any provision law, provision which has the force and effect law, that enacted becomes effective during the period beginning noon January 2007, and ending noon January 2013. Secretary State Emoluments Act,  1(a).1   The Act further provides Any person aggrieved action the Secretary State may bring civil action contest the constitutionality the appointment and continuance office the Secretary State the ground that such appointment and continuance office violation article section clause the Constitution. Id.,  1(b)(1) (emphasis supplied).  The Secretary State Emoluments Act thus sets the The pay the Secretary State set statute level the Executive Schedule. See U.S.C.  5312. Pursuant U.S.C.  5303, 5318, cost living adjustments were made the Executive Schedule Executive Order 13420, dated December 21, 2006, Executive Order 13454, dated January 2008, and Executive Order 13483, dated December 18, 2008. 
compensation the Office Secretary State the level that was January 2007, two 
days before Secretary Clinton started her most recent Senate term.  Article Section Clause the United States Constitution, known the Ineligibility Clause, states: Senator Representative shall, during the Time for which was elected, 
appointed any civil Office under the Authority the United States, which shall 
have been created, the Emoluments whereof shall have been encreased during 
such time[.] 
U.S. Const. Art.  cl. 2.2 
Plaintiff, United States Foreign Service Officer employed the Department State, seeks debate whether the Secretary State Emoluments Act indeed removed any Ineligibility Clause obstacles Secretary Clintons appointment.  Compl.   Plaintiff does not, however, allege that has been aggrieved any action taken Secretary Clinton.  And although Plaintiff has, like all government employees, taken oath support and defend the Constitution, has not been required anything that would violate that oath; the contrary, Plaintiff admits that has remained true his oath.  Compl.    Nevertheless, Plaintiff seeks extraordinary remedy: have the Court enjoin[] [Secretary] Clinton from continuing serve U.S. Secretary State.  Id. 
Secretary Clintons appointment was, moreover, consistent with the Constitution. result the Secretary State Emoluments Act, the emoluments the office Secretary State were the same the first day her Senate term they were the day her appointment  because there was net increase from the beginning the term the time  Article Section Clause actually contains two sub-clauses.  The second sub-clause, known the Incompatibility Clause states that no Person holding any Office under the United States, shall Member either House during his Continuance Office.  The Incompatibility Clause not issue here, Secretary Clinton has resigned her Senate seat. 
appointment, the Emoluments were not encreased during Secretary Clintons Senate term. Plaintiff argues the contrary, asserting that the term shall have been encreased refers increase emoluments any point during the term, even the increase was repealed the time appointment.  But both rules grammar and historical usage from the time the Framers refute Plaintiffs effort find clarity the text.  See infra Part II.A. Moreover, review the purpose the Ineligibility Clause evidenced the debate the Constitutional Convention makes clear that the Defendants interpretation the proper one.  See infra Part II.B. And, various Presidents and Congresses, adhering the purposes the Framers, have consistently concluded that the Ineligibility Clause does not prevent the appointment Member office where any increases emoluments during the Members current term have been repealed prior the appointment.  See infra Part II.C.  Indeed, prior Secretary Clintons appointment, Members had been appointed Executive Office, Presidents both political parties, under similar circumstances (i.e., the salary the office had been increased and then the increase repealed prior the Members appointment the Executive Branch) least half dozen times during the last hundred years.  See id. 
Because Plaintiff lacks standing, however, the Court should not involve itself this question, even confirm the longstanding, correct view the political branches that Secretary Clintons appointment was constitutional. 
ARGUMENT Plaintiff Lacks Standing Challenge Secretary Clintons Appointment. 
Plaintiffs claims must dismissed because lacks Article III standing.  Article III the Constitution restricts the federal courts the adjudication Cases Controversies. 
U.S. Const. Art. III,  the Supreme Court has explained, the case controversy requirement defines with respect the Judicial Branch the idea separation powers which the federal government founded.  Allen Wright, 468 U.S. 737, 750 (1984). Indeed, [n]o principle more fundamental the judiciarys proper role our system government than the constitutional limitation federal-court jurisdiction actual cases controversies. Raines Byrd, 521 U.S. 811, 818 (1997) (quoting Simon Eastern Ky. Welfare Rights Org., 426 U.S. 26, (1976)). core element Article IIIs case controversy requirement that plaintiff must establish that she has standing sue.  Lujan Defenders Wildlife, 504 U.S. 555, 560561 (1992) ([T]he core component standing essential and unchanging part the case-or-controversy requirement Article III.).  [T]he law Art. III standing built single basic idea  the idea separation powers. Allen, 468 U.S. 752. And, the standing inquiry [is] especially rigorous when reaching the merits the dispute would force [the court] decide whether action taken one the other two branches the Federal Government was unconstitutional.  Raines, 521 U.S. 819-20; see also Schaffer Clinton, 240 F.3d 878, 88283 (10th Cir. 2001) (relying Raines reject standing for 27th Amendment challenge congressional cost-of-living adjustments). 
Plaintiff bears the burden establishing [the] existence standing because federal courts should presume they lack jurisdiction unless the contrary appears affirmatively from the record. Steel Co. Citizens for Better Environment, 523 U.S. 83, 104 (1998); Renne Geary, 501 U.S. 312, 316 (1991). satisfy his burden, [a] plaintiff must allege personal injury fairly traceable the defendants allegedly unlawful conduct and likely redressed the requested relief.  Allen, 468 U.S. 751.  Thus, satisfy the irreducible constitutional minimum standing, Plaintiff must satisfy three elements.  Lujan, 504 U.S. 560.  First, Plaintiff must show injury-in-fact  an invasion legally protected interest which 
(a) concrete and particularized, and (b) actual imminent, not conjectural hypothetical. Id. (internal quotation marks and citations omitted).  Second, Plaintiff must show a causal connection between the injury and the challenged action.  Id.  Third, must likely, opposed merely speculative, that the [Plaintiffs] injury will redressed favorable decision. Id. 561 (quotation and citation omitted); accord Vt. Agency Natural Res. United States rel. Stevens, 529 U.S. 765, 771 (2000) (redressability requires substantial likelihood that the requested relief will remedy the alleged injury fact). 
Plaintiff, like previous plaintiffs who have sought bring challenges pursuant their interpretations the Ineligibility Clause, simply does not meet these requirements.  See parte Levitt, 302 U.S. 633 (1937) (rejecting challenge member the Supreme Court Bar the appointment Senator Hugo Black Associate Justice the United States Supreme Court); McClure Carter, 513 Supp. 265 (D. Idaho 1981) (three-judge panel), affd sub nom. McClure Reagan, 454 U.S. 1025 (1981) (dismissing challenge Senator McClure the appointment Representative Abner Mikva the U.S. Court Appeals for the D.C. Circuit). Plaintiff Has Not Alleged Concrete and Particularized Injury 
The Supreme Court has consistently stressed that plaintiffs complaint must establish that has personal stake the alleged dispute, and that the alleged injury suffered particularized him. Raines, 521 U.S. 819 (emphasis supplied).  This particularized injury must actual imminent, not conjectural hypothetical. Lujan, 504 U.S. 560 (quotations omitted). 
Plaintiff Has Not Alleged Concrete Injury 
Plaintiffs complaint notably devoid any allegation concrete injury.  Plaintiff alleges way which the appointment Secretary Clinton aggrieves him any way other than his dislike for it. has alleged change his job duties conditions employment traceable the challenged appointment. has not alleged that personally required carry out purportedly unconstitutional law policy. Congress confirmed the Secretary State Emoluments Act, Plaintiff must aggrieved action the Secretary State order satisfy the concrete injury-in-fact requirement Article III standing.  See Secretary State Emoluments Act 1(b)(1) (providing that [a]ny person aggrieved action the Secretary State may bring civil action (emphasis supplied)); cf. Doe Chao, 540 U.S. 614, 624 (2004) (The phrase person adversely affected aggrieved term art used many statutes designate those who have standing (emphasis supplied)). 
Here, Plaintiffs concerns are nothing more than generalized feeling discomfort about the Secretarys appointment, and this abstract injury [alleged] nonobservance the Constitution clearly insufficient confer Article III standing.  Schlesinger Reservists Comm. Stop the War, 418 U.S. 208, 223 n.13 (1974). the Supreme Court has held, psychological consequence presumably produced observation conduct with which one disagrees not injury sufficient confer standing under Article III, even though the disagreement phrased constitutional terms.    Valley Forge Christian College Americans United for Separation Church State, 454 U.S. 464, 485-86 (1982).  Nor does personal offense government action general emotional harm, matter how deeply felt, give rise standing sue. Navy Chaplaincy, 534 F.3d 756, 763 (D.C. Cir. 2008); see also Humane Socy United States Babbitt, F.3d 93, (D.C. Cir. 1995) (holding that allegations sleeplessness, depression, and anger could not suffice establish injury for standing purposes). 
Plaintiffs dislike for Secretary Clintons appointment does not constitute concrete injury merely because he, like all government employees, has taken oath support and defend the Constitution.  Compl.  U.S.C.  3331; see also U.S. Const. Art. VI,  (requiring State and Federal officers and legislators take oath affirmation to support this Constitution).  Plaintiff contends that [r]equiring [him] serve under, take direction from, and report Defendant Clinton harms [him] because direct and unequivocal conflict with the oath Plaintiff took the U.S. Constitution.  Compl.  17.  However, oath support and defend the Constitution cannot reasonably construed require its adherent personally vindicate every perceived Constitutional wrong the government.  See, e.g., Cole Richardson, 405 U.S. 676, 684 (1972) (an oath support and defend the Constitution does not impose obligations specific, positive action oath takers, but merely assures that willing commit [himself] live the constitutional processes our system).  Nor can construed prevent its adherent from coming work just because believes agency official was improperly appointed.  See id. 
Indeed, Plaintiffs attempt use his oath convert his feelings discomfort into Article III standing analogous the similar attempt standing rejected decades ago the Supreme Court Parte Levitt. See 302 U.S. 633 (1937). one thousands Foreign Service Officers who have taken the same oath, Plaintiffs relationship the Secretary analogous the relationship between member the Supreme Court bar and Supreme Court Justicenotably, members the Courts bar also take oath uphold the Constitution, see Richardson, 405 U.S. 681, and they are, course, subject the rules and discipline the Supreme Court, e.g., Sup. Ct. 8.1. Notwithstanding these facts, the Supreme Court summarily found this relationship inadequate basis for standing bring Ineligibility Clause challenge. See parte Levitt, 302 U.S. 633 (1937). 
Nor has Plaintiff alleged that suffering concrete injury because faced with the choice either engaging conduct that would itself violate the Constitution being removed from office.  This case thus entirely distinguishable from Board Education Allen, 392 
U.S. 236 (1968). Allen, the Supreme Court held that members school board specifically directed state law lend textbooks without charge parochial schools could bring Establishment Clause challenge based the choice between violating their oath complying with unconstitutional law and refus[ing] comply with the statute and losing their jobs. Id. 241 n.5. Precedents applying Allen demonstrate that both the explicit statutory command engage unconstitutional act and the genuine threat removal are required create the dilemma that gave rise standing Allen. Board Educ. New York State Teachers Retirement Sys., F.3d 106, 112 (2d Cir. 1995). Where plaintiffs not contend that any actual threat has been made remove them from their positions, the threat harm found Allen lacking.  Id. 112. contrast, statute directing officials actively execute the laws commands brings the personal stake and harm described Allen. See South Lake Tahoe California Tahoe Regional Planning Agency, 625 F.2d 231 (9th Cir. 1980).  But Allen standing does not reach suits such this one, where plaintiff suffers nothing more than abstract outrage, recognizing such harm sufficient for Article III purposes would convert all officials into potential litigants, attorneys general, whenever they believed they had witnessed unconstitutional conduct.  Id. 238. Here, Plaintiff faces such choice.   
Because Plaintiffs alleged injury nothing more than general desire see the Constitution, interprets it, followed, lacks the type concrete injury required for Article III standing. Plaintiff Has Not Alleged Injury that Particularized Him addition being abstract, the injury Plaintiff cites also insufficient for Article III standing because not particularized him. establish Article III standing, plaintiff must able show that has sustained immediately danger sustaining some direct injury and not merely that suffers some indefinite way common with people generally.  Hein Freedom From Religion Foundation, 551 U.S. 587, __, 127 S.Ct. 2553, 2562
 (2007) (quoting Frothingham Mellon, 262 U.S. 447, 488 (1923)). Plaintiffs alleged oathbased injury anything but particularized injury. 
Hundreds thousands federal employees and millions active-duty and reserve members the armed forces swear oath the Constitution.  All those millions are situated similarly Plaintiff  serving under and taking their ultimate control and direction from leader (the President) who has allegedly violated the Constitution appointing Secretary Clinton. Such abstract questions wide public significance amount generalized grievances, pervasively shared and most appropriately addressed the representative branches.  Valley Forge, 454 U.S. 475 (quoting Warth Seldin, 422 U.S. 490, 499-500 (1975)). 
The essence the requirement that plaintiffs injury particularized satisfy Article III that the injury not generalized grievance shared substantially equal measure all large class citizens.  Warth, 422 U.S. 499 (citing United States Richardson, 418 U.S. 166, 176-77 (1974)).  The reason for this limitation straightforward: because the necessarily abstract nature the injury all citizens share, the legislative function inherently general rather than particular, that entrusted the Constitution with resolving such injuries.  Schlesinger, 418 U.S. 220-21 n.10.3   Because the alleged Constitutional violation cited Plaintiff originates the top the government  i.e., action the President and the Senate that challenged  impossible distinguish Plaintiffs interest from those other oath-takers, given the lack any specific allegation harm him conduct that involves him personally.  And while, Foreign Service Officer, Plaintiff may have specific interest the conduct foreign policy, specific policy interest insufficient establish particularity for purposes satisfying Article IIIs requirements. See ASARCO Kadish, 490 U.S. 605, 616 (1989) (holding that teachers unions special interest the quality education was insufficient confer standing challenge legislation that impacted schools). Notably, the very Constitutional question that Plaintiff seeks raise here has been debated length Congress more than one occasion, with substantial majorities Congress finding against Plaintiffs proposed interpretation the Ineligibility Clause.  See supra Part II.C. 
Congress recognized the need for Article III injury particularized 
establishing the cause action Plaintiff seeks bring the Secretary State Emoluments Act, which expressly limits such actions those who have been aggrieved an action the Secretary.  Pub. No. 110-455, 122 Stat. 5036 (emphasis supplied). This clause clearly excludes Plaintiff, does not allege that was aggrieved any action taken the Secretary, but rather that offended her presence Secretary. This requirement for action excludes necessarily abstract harms such Plaintiffs purported constitutional debate, see Schlesinger, 418 U.S. 220, well other inherently general injuries.  Id. Thus, even the extent that plaintiff might encounter Secretary Clintons name official documents correspondence, walk past her the halls the State Department, any emotional response experienced would still fail satisfy the need for concrete and particularized injury under Article III.   See, e.g., Newdow Eagen, 309 Supp. 29, 32-35 
(D.D.C. 2004), appeal dismissed, No. 04-5195, 2004 1701043 (D.C. Cir. July 29, 2004 (alleged injury being forced confront religious dogma [found] offensive the type emotional harm rejected basis standing Valley Forge). Plaintiffs claimed injury not particularized him, lacks Article III standing. Plaintiffs Supposed Injury Not Judicially Redressable addition lacking Constitutionally sufficient injury, Plaintiffs claims fail for the independent reason that his concern not judicially redressable.  Plaintiffs vaguely-described injury stems not from an action the Secretary, see Secretary State Emoluments Act,  1(b)(1), but rather, from her continuance office U.S. Secretary State, Compl.  21. Plaintiff accordingly asks that the Court enjoin[] [Secretary] Clinton from continuing serve U.S. Secretary State, and declare that the Secretarys appointment and continuance office are unconstitutional.  Id. Neither these forms relief judicially available, and thus Plaintiffs injury not redressable. 	Plaintiffs Injury Cannot Redressed Through Injunction Directed the Secretary State 
Plaintiffs prayer that the Court order the Secretary halt her service nothing short request that the Court unconstitutionally exercise power lacks  that removal principal officer.  Because the exclusive power removal principal officers executive
agencies vested the Constitution the President (except cases impeachment), the
Court cannot direct injunction the Secretary State requiring her leave office. 
See Youngstown Co. Sawyer, 343 U.S. 579, 638 n.4 (1952) (Jackson, J., concurring) (the 
Presidents exclusive power removal executive agencies[] [was] affirmed Myers 
United States). 

Article the Constitution grants the President the executive power the government  i.e., the general administrative control those executing the laws, including the power appointment and removal executive officers.  Myers United States, 272 U.S.52, 163-64 (1926). also excludes the exercise legislative power Congress provide for appointments and removals because the power removal a necessary incident the appointment power. Id. 126, 164. The Constitution has reserved the power removal the Because Plaintiff has not named the President Defendant this action, the question whether Plaintiffs alleged injury would redressable order the President not presented here.  Nevertheless, there substantial reason doubt that the Court could permissibly issue such order the President.  See Swan Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996); cf. infra Part I.B.3. 
President because [t]he power remove officers powerful tool for control, that must remain the control the President ensure the independence the Executive Branch. Edmond United States, 520 U.S. 651, 664 (1997).  The Appointments Clause is bulwark against one branch aggrandizing its power the expense another branch, but more: preserves another aspect the Constitutions structural integrity preventing the diffusion the appointment and removal powers. Ryder United States, 515 U.S. 177, 182 (1995).  These principles apply not just the separation powers between the executive and legislative branches, but between the executive and judicial branches well.  See Hampton, Jr., Co. United States, 276 U.S. 394, 406 (1928) ([I]t breach the National fundamental law Congress gives its legislative power and transfers the President, the Judicial branch, law attempts invest itself its members with either executive power judicial power.); accord Morrison Olson, 487 U.S. 654, 687 (1988) (The checks and balances and system separation powers enshrined the Constitution are a self-executing safeguard against the encroachment aggrandizement one branch the expense the other. (quotation omitted)).  Thus, any attempt another branch remove principal officer the Executive Branch would beyond the words and implications the [Appointments Clause] and infringe the constitutional principle the separation governmental powers. Morrison, 487 U.S. 686 (quoting Myers 272 U.S. 161) (alteration original). 
Although Supreme Court decision has squarely addressed attempted judicial usurpation the removal power, language legislative removal cases demonstrates that this would impermissible.  For example, Morrison, the Court reviewed whether there was any judicial usurpation properly executive functions.  487 U.S. 695. holding that there was not, the Court stressed the textual foundation for vest[ing] the appointment inferior office the courts Law, distinct from the unique Executive authority over principal officers. Id. the Court observed, any tinkering the judicial branch with removals could create constitutional problem. See Id. 693 33. Similarly, Bergen Edenfield, the Eleventh Circuit Court Appeals recognized that methods removal are incontestably limited the grants authority the Constitution. 701 F.2d 906, 908 (11th Cir. 1983).  Considering attorneys challenge the conduct judge, the Court Appeals observed that [t]he only mechanism for removal federal judge provided the Constitution the impeachment process.  Although the Edenfield court considered the question merits issue whether there existed legal basis for th[e] suit, id., the absence permissible, constitutional remedy equally question for the standing analysis.  Accord Florence Frontier Airlines, Inc., 2003 
U.S. Dist. LEXIS 25750  (N.D. Tex. 2003); Ritter United States, Ct. Cl. 293 (Ct. Cl. 1936) (courts lack power review impeachment and removal federal judge the Senate). 
Historical judicial practice adds further weight the conclusion that Plaintiff cannot obtain judicial removal principal officer. cases brought general challenges the validity appointments vested exclusively the President, courts have declined order removal officer from office.  Although courts have considered challenges the validity appointments under several provisions the Constitution, including the Appointments Clause, the Incompatibility Clause, and the Ineligibility Clause, even where court concludes that appointment was unlawful, never attempts remove the appointee.  Rather, the principal remedy courts have granted invalidation the appointees action that caused the requisite concrete harm the plaintiff.  See Nguyen United States, 539 U.S. 69, (2003) (vacating decision Court Appeals where panel had been improperly constituted); Ryder United States, 515 U.S. 177, 178 (1995) (ordering a hearing before properly appointed panel remedy for unconstitutional appointments military appeals court).5 cases where, here, plaintiffs have not challenged specific actions, courts have declined interfere with the Presidents exclusive power removal.  Indeed, even when considering the remedy for appointments where the Presidents power had been unconstitutionally usurped the Congress, the Supreme Court has nevertheless stopped short ordering removal.  See Buckley Valeo, 424 U.S. (1976) (identifying specific powers the Federal Elections Commission and ordering the legislatively-appointed members not exercise those powers); see also Bowsher Synar, 478 U.S. 714, 735 (1986) (authorizing Congress implement fallback provisions where the delegation authority the Comptroller General was held unconstitutional). 
Plaintiffs failure identify concrete, particularized harm, and the inability the Court redress his purported injury, are not unrelated.6   Plaintiffs desire obtain sweeping Even those cases where plaintiffs have alleged concrete harms pertaining impending actions rather than past actions, the remedy granted has not been remove the officeholder. See, e.g., Metropolitan Washington Airports Authority Citizens for Abatement Aircraft Noise, 501 U.S. 252 (1991); Olympic Federal Savings and Loan Assn Director, Office Thrift Supervision, 732 Supp. 1183 (D.D.C. 1990)); Franklin Sav. Assn Director, Office Thrift Supervision, 740 Supp. 1535, 1541 (D. Kan.1990). The D.C. Court Appeals has observed that plaintiff who seeks directly attack the appointment official (as opposed attacking action that official) will rarely ever have standing. See Andrade Lauer, 729 F.2d 1475, 1496-97 (D.C. Cir. 1984). the same case, the court suggested that the only proper way assert such direct attack through action for writ quo warranto. See id. 1497 (citing cases). quo warranto action may only brought the Attorney General the United States the United States Attorney or, these Executive Branch officials decline request, private party who has obtained leave court. See D.C. Stat.  16-3502-3503; see also Rae Johnson, 1993 544295, 
relief cannot accepted substitute for compliance with the general rule that the complainant must present facts sufficient show that his individual need requires the remedy for which asks. Schlesinger, 418 U.S. 221-22 (quoting McCabe Atchison, Co., 235 U.S. 151, 164 (1914)) (alteration omitted).  The standing requirements operate together ensure that disputes are presented a form traditionally capable judicial resolution [with] the essential dimension specificity  [because] court must rely the parties treatment the facts and claims before develop its rules law. Id. 220-21.  These requirements further serve[] the function insuring that adjudication does not take place unnecessarily. This principle particularly applicable here, where respondents seek interpretation constitutional provision which has never before been construed the federal courts.  Id. 
221. 
Because only the President may remove principal officer, the judiciary does not have the power enjoin Secretary Clinton from serving Secretary State. 	Plaintiffs Injury Cannot Redressed Through Order Directed the Department State 
Plaintiff has also named the Department State defendant, but the inclusion the agency does not alter the non-redressability Plaintiffs injury. Although Plaintiff suggests that the Court enjoin[] Defendant U.S. Department State from requiring Plaintiff serve under, take direction from, and report Defendant Clinton, Compl. there appears way that such relief could effectuated without removing either plaintiff defendant from their 
(D.D.C. Dec. 22, 1993).  Moreover, appears that the only private person who may permissibly bring such action (after obtaining leave court) person who has claim that has right occupy the disputed office that being wrongfully occupied another.  See Andrade, 729 F.2d 1498. 
respective positions.  There can doubt that the Department State lacks the ability remove its own department head from office and that such power cannot conferred upon it. See Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997) (characterizing removal a quintessential and non-delegable Presidential power); accord Judicial Watch, Inc. DOJ, 365 F.3d 1108, 1115 (D.C. Cir. 2004) (the appointment and removal power for heads Executive Departments a non-delegable duty the President). such, injunctive relief against the Department State could remedy Plaintiffs purported injury. 	Plaintiffs Injury Cannot Redressed Through Declaratory Judgment 
The requirement redressability similarly not satisfied Plaintiffs request for declaration about the constitutionality the Secretarys appointment. declaratory judgment must admit[] specific relief through decree conclusive character. Aetna Life Ins. Co. Hartford, Conn. Haworth, 300 U.S. 227, 241 (1937). Thus, [f]or plaintiff have standing request injunctive declaratory relief, the injury alleged must capable being redressed through injunctive relief .  Robidoux Celani, 987 F.2d 931, 938 (2d Cir. 1993). This requirement ensures that declaratory judgments are consonant with the exercise the judicial function the determination controversies which under the Constitution the judicial power extends.  Haworth, 300 U.S. 240. 
The declaration sought Plaintiff would fail remedy the alleged injury fact.  Vt. Agency Natural Res., 529 U.S. 771.  Because only the President has the constitutional authority remove the Secretary, such declaration would not halt the continuance office that Plaintiff states the basis for his purported injury.  Compl.  22. Nor does the possibility declaratory judgment enable Plaintiff sidestep the constitutional issues that preclude injunctive relief. noted, the gravamen Plaintiffs Complaint that the President acted unconstitutionally the exercise the Appointments power.  See supra Part I.A.1. Yet the inappropriateness declaring invalid the Presidents exercise his official powers supported the same legal authority noting that courts should not issue injunctions against the President. See Franklin Massachusetts, 505 U.S. 788, 802-03 (1992) (plurality opinion) ([I]n general, this court has jurisdiction bill enjoin the President performance his official duties. (quoting Mississippi Johnson, U.S. 475, 501 (1866));7  Clinton Jones, 520 U.S. 681, 718-19 (1997) (Breyer, J., concurring) (constitutional principles counsel caution when judges consider order that directly requires the President properly carry out his official duties); Swan Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996) (citing Franklin explain why injunctive relief against the President personally disfavored).  
This line authority regarding injunctive relief bears directly Plaintiffs request for declaratory judgment, declaratory judgment against the President would raise the exact same separation powers concerns.  See Swan, 100 F.3d 976 n.1 (Although the following discussion couched terms our ability grant injunctive relief against the President, similar considerations regarding courts power issue relief against the President himself apply Swans request for declaratory judgment.). Justice Scalia has stated: think cannot issue declaratory judgment against the President. 
incompatible with his constitutional position that compelled personally 
defend his executive actions before court. The Presidents immunity from 
such judicial relief a functionally mandated incident the Presidents unique  While the plurality Franklin did not reach the question the facts that case whether injunction against the President was appropriate, the Court nonetheless noted that the District Courts grant injunctive relief against the President himself extraordinary, and should have raised judicial eyebrows.  Franklin, 505 U.S. 802 (plurality opinion). 
office, rooted the constitutional tradition the separation powers and supported our history.  Permitting declaratory injunctive relief against the President personally would not only distract him from his constitutional responsibility take Care that the Laws faithfully executed, U.S. Const., Art. II,  but, more and more disgruntled plaintiffs add his name their complaints, would produce needless head-on confrontations between district judges and the Chief Executive. 
Franklin, 505 U.S. 827-28 (Scalia, J., concurring) (quoting Nixon Fitzgerald, 457 U.S. 731, 749 (1982) (internal footnote omitted)).8 
Because any declaratory judgment this case would declaration against the President and his use his Constitutional appointment power, the separation powers doctrine prohibits such relief. sum, plaintiff lacks standing because has alleged concrete injury, because has alleged particularized injury, and because his supposed injury not judicially redressable. For any one these reasons, his claims should dismissed. Even the Court had the Constitutional power issue declaratory judgment against the President directed his use Constitutional powers, would prudent for the Court exercise its unique and substantial discretion deciding whether declare the rights litigants, Wilton Seven Falls Co., 515 U.S. 277, 286 (1995), and decline issue such declaration.  See, e.g., North Shore Gas Co. Salomon, Inc., 152 F.3d 642, 647 (7th Cir. 1998) (Declaratory Judgment Act does not obligate courts issue declaratory judgments.  Instead, district courts have wide discretion decline hear such actions.). 

II. 	Plaintiffs Complaint Fails State Claim Upon which Relief May Granted Because Secretary Clinton Has Properly Been Appointed 
Even Plaintiff had Article III standing, and does not, his Complaint must still dismissed because his legal claims are without merit.  The Ineligibility Clause bars the appointment Member Congress office where the emoluments that office have been encreased during the Members current term. undisputed that the emoluments the office Secretary State were the same when Secretary Clinton was appointed they were the beginning her most recent term.  Because the emoluments the time appointment were not increased from the time her most recent term began, her appointment does not violate the clause. 
Plaintiff able contend that there violation only interpreting the phrase have been encreased during refer any historical increase even was repealed before the appointment issue and therefore had effect the person question. Plaintiffs analysis, the stock market was increased during 2008even though the Dow Jones Industrial Average lost about third its valuebecause had some positive days.  Cf. Exhibit Those with stock investments during that time would not agree. any event, Plaintiffs reading not compelled the constitutional text, squarely odds with the purpose the clause, and inconsistent with the long history practice Presidents and Congress. 	Because There Was Net Increase the Emoluments the Office Secretary State During Secretary Clintons Senate Term, Her Appointment Consistent with the Plain Language the Ineligibility Clause 
Plaintiff would have this Court take one look the Constitutional provision, declare unambiguous, and apply without regard the provisions purpose history.  Under Plaintiffs construction the Ineligibility Clause, ineligibility inures the Emoluments the office have increased any historical point during the period, even the increase was subsequently repealed during the same period.  Given this meaning, not the overall condition the Emoluments that determine eligibility, but rather, the act increase itself, occurs any point after the beginning the Members term.  And, Congress may not restore eligibility the Member adjusting the emoluments prior the Members appointment restore them the original level. 
The plain text  the Ineligibility Clause, however, does not compel Plaintiffs reading. the contrary, the word encreased and the phrase shall have been encreased during are comfortably read require ineligibility only  the emoluments the office have increased net during the period.9   Under this reading, long the emoluments existing the time the Appointment not exceed those that existed the commencement the Members term election, the Member eligible for office.  Notwithstanding Plaintiffs breezy assumption that his embrace the latter interpretation correct, nothing the text the Constitution requires this conclusion.  Indeed, rules grammar and common usage from the time the Framers make clear that the phrase shall have been increased during can reasonably understood carry the on net meaning that Plaintiff seeks foreclose. 
First, that the plain language does not compel Plaintiffs interpretation confirmed the fact that increased one many words that can serve either adjective verb,   Encreased now-disused spelling the word increased, and has retained its meaning from the 18th  century the present. Compare New Shorter Oxford English Dictionary 1342 (3d ed. 1993) (listing the primary meaning make become greater size, amount, duration, degree) with Samuel Johnson, Dictionary the English Language (1804) (To grow more number, greater bulk, advance quantity value.). 
depending the context.  Because increased more familiar modern readers verb, the similar word damaged provides helpful illustration. verb, sentence like The vase was damaged accident, damaged describes event that has taken place, and acts verb.  Yet sentence such The vase did not appear damaged after fell, the word damaged describes the condition the vase, and therefore adjectival. The word increased the Eligibility Clause may likewise describe either event that has taken place the condition the emoluments.10   Such ambiguity between verb form and adjective not unique, and particularly likely where, the Ineligibility Clause, the verb-form involved past-participle form, and occurring after be the progressive and passive constructions.  See Rodney Huddleston Geoffrey Pullum, Students Introduction English Grammar, 116-17 (2005); accord Rodney Huddleston Geoffrey Pullum, The Cambridge Grammar the English Language, 1436-41 (2002). 
Usage examples from the early 18th century confirm that increase sometimes served adjective describing state affairs during the era the Constitution and the time thereafter.  For instance, Englishman Alexander Hay wrote the following 1804: 
There reason doubt the accuracy the survey 1801, unless should 
suspected that it, well the general survey the kingdom then had, was taken the desire the ministry, who doubtless were solicitous that the population 
the kingdom should appear increased, and not diminished, after long and 
destructive war, which many lives were lost. 
Hays History Chichester, 1804 574 (West Sussex Co. and Diocesan Record Office 1974). word such increased particularly susceptible being read adjective describing condition state affairs, the on net interpretation the Emoluments Clause, can complement verb such seem appear, the broken-vase example above. Increase passes the test doing sentence such as: The water level the river seems increased since yesterday. 
This use increased extends constructions similar the Ineligibility Clause, including alongside passive form the be verb and the word during describing change during specified period.  Thus, Sir Walter Scott wrote:  Their dislike the Prussian government and nation had been increased during the wars the great Frederick .  History Europe, Edinburgh Annual Register 305 (1816).  Likewise, report Congress, organization manufacturers observed that:  The value goods manufactured the United States amounted, early 1810, upwards one hundred and seventy-two millions dollars, which value was very greatly increased during the late war.  16th Cong. Rec. 441 (Dec. 20, 1819).11 
Consistent with these examples, the phrase shall have been increased during can reasonably interpreted describe net change the condition the emolument, which case the Secretary State Emoluments Act properly rendered Secretary Clinton eligible for appointment Secretary State. Although the possibility interpreting increased adjective describing the state condition the emoluments sufficient establish the ambiguity the Clause, also possible read increased verb the resultative perfect tense, which similarly describes state existence, particularly connection with past act.  See Jeong Hong-Lee, The Have Perfect Old English 375, Studies the History the English Language (Donka Minkova and Robert Stockwell, eds., 2002). such fashion, three Pennsylvania politicians reporting the Whiskey Rebellion reported 1794 that [t]he militia (which late orders from the President, have been increased 15,000 men .), have received orders assemble . Letter Sept. 1794, Opposition the Excise Law Pennsylvania, reprinted American State Papers 037, Misc. Vol. Cong., Session (Pub. No. 56). 	The Purpose the Ineligibility Clause Demonstrates that Bars Appointment Only Where the Emoluments Have Been Increased Net During the Members Current Term 
Where constitutional provision open more than one construction, the duty the courts choose the construction that fits with the purpose the provision.  E.g., United States Classic, 313 U.S. 299, 316 (1941) (If remember that it Constitution are expounding, cannot rightly prefer, the possible meanings its words, that which will defeat rather than effectuate the Constitutional purpose.).  Indeed, least since the seminal case MCulloch Maryland, U.S. 316 (1819), nearly two hundred years ago, has been settled that constitutional provisions must construed accordance with their purpose. that case, Chief Justice Marshall confronted States claim that federal law did not satisfy the Constitutions necessary and proper clause12 because, while was helpful Congress purpose, was not truly necessary.  See id. 413.  The Supreme Court rejected what Chief Justice Marshall called this strict and rigorous meaning the word necessary, finding that the word was also susceptible second, less rigorous construction convenient, useful.  Id. 413, 419. Chief Justice Marshall noted: 
Such the character human language, that word conveys the mind, all situations, one single definite idea; and nothing more common than use words figurative sense.  Almost all compositions contain words, which, taken their rigorous sense, would convey meaning different from that which obviously intended. essential just construction, that many words which import something excessive, should understood more mitigated sense  that sense which common usage justifies. 
Id. 414 (emphasis supplied). choosing between the rigorous and more mitigated constructions the word, the Court looked the intention those who drafted the U.S. Const. Art.  cl. 18. 
Constitution.  Id. 415. Finding that the strict and rigorous meaning advanced the State Maryland could not [have been] intended, the Supreme Court chose the construction that would allow the federal government function the Framers intended.  Id. 419.13 
Applying this principle here, clear that, while the text the Ineligibility Clause susceptible two different constructions, only Defendants construction consistent with the purpose the clause, demonstrated the drafting history the clause the Constitutional Convention. 
The Ineligibility Clause emerged from the Constitutional Convention compromise between two strong and competing concerns expressed the Framers. the one hand, there was concern that unlimited Congressional eligibility Executive Branch positions could lead Legislative corruption undue Executive Branch influence over Congress legislators created enhanced positions and then sought appointment those same positions Presidents offered newly enhanced offices exchange for votes. the other hand, there was concern that overbroad disqualification Members would significantly disserve the Nation robbing the public service talented and experienced individuals the Executive, Judicial, and Accord Alden Maine, 527 U.S. 706, 741 (1999) (interpreting the Constitution light history, practice, precedent, and the structure the Constitution); Baker GMC, 522 U.S. 222, 231-32 (1998) (progressing from analysis the text the Full Faith and Credit Clause analysis its purpose); Seminole Tribe Florida Florida, 517 U.S. 44, (1996) (Although the text the [Eleventh] Amendment would appear restrict only the Article III diversity jurisdiction the federal courts, have understood the Eleventh Amendment stand not much for what says, but for the presupposition which confirms. (quotation omitted) (alteration original)); U.S. Term Limits Thornton, 514 U.S. 779, 806-14 (1995) (interpreting Constitution reviewing history Constitutional Convention determine the Framers intended purpose); Bell Maryland, 378 U.S. 226, 288-89 (1964) (Goldberg, J., concurring) (Our sworn duty construe the Constitution requires [that] read effectuate the intent and purposes the Framers.). 
Legislative Branches.  The resulting compromise advanced James Madison thus sought prevent Members Congress from enjoying gains from decisions made during the term for which they were elected, without limiting the pool qualified appointees where this concern not present. originally proposed, the language that would become the Ineligibility Clause was substantially broader than the clause ultimately enacted. reported committee June 13, 1787, the proposal stated that Members were ineligible any Office established particular State under the authority the United States (except those peculiarly belonging the functions the [respective House Congress]) during the term service, and under the national government for the space one year after its expiration. Farrand, Records the Federal Convention 1787, 228 (1966 ed.).14 June 22, Delegates the Convention, mainly Federalists, raised objections the breadth the disqualification inherent this version the clause.  For example, James Wilson Pennsylvania stressed the cost that the Federal Government would pay were unable choose the best people for Executive and Judicial positions: 
Strong reasons must induce disqualify good man from office. [W]e ought hold forth every honorable inducement for men abilities enter the service the public.  This truly republican principle. Suppose war breaks out, and number your best military characters were members; must lose the benefit their services? 
Id. 379-80.  Alexander Hamilton was even more vigorously opposed the clause: have been taught reprobate the danger influence the British Notably, this point the proposed Constitution would have vested much the appointment power the Legislature rather than the Executive. Id. 230-31. During the course the Convention, the appointment power moved the Executive and the scope the Ineligibility Clause, which targeted part Congressional self-dealing, was reduced accordingly. 
government, without duly reflecting how far was necessary support good government. Our [mankinds] prevailing passions are ambition and interest; and will ever the duty wise government avail itself these passions, order make them subservient the public good  for these ever induce action.  Perhaps few men state, may, from patriotic motives, display their talents, reap the advantage public applause, step forward; but adopt the clause destroy the motive. therefore against all exclusions and refinements, except only this case; that when member takes his seat, should vacate every other office. 
Id. 381-82. Anti-Federalists such George Mason Virginia took the opposite view: 
[The proposed clause] necessary shut the door against corruption. otherwise, they [Members Congress] may make multiply offices, order fill them. not checked, shall have ambassadors every petty state Europe  the little republic St. Marino not excepted. must the present system remove the temptation. admire many parts the British constitution and government, but detest their corruption. 
Id. 380. 
The next day, James Madison proposed compromise that would render Members 
ineligible during their term service, [and] for one year after  such offices only should established, the emoluments thereof, augmented the Legislature the U[nited] States 
during the time their being members.  Id. 386.  Madison supposed that the unnecessary 
creation offices, and increase salaries, were the evils most experienced [and] that the door 
was shut ag[ain]st them, might properly left open for the appoint[ment] members other 
offices encouragm[ent] the Legislative service.  Id. 
Madison had been led this motion middle ground between eligibility all cases, and absolute disqualification. The question was not viewed one side only.  The advantages [and] disadvantages both ought fairly compared. The objects aimed were fit all offices with the fittest  characters [and] draw the wisest [and] most worthy citizens into the Legislative service. the next object, the impulse the [State] Legislative service, was evinced experience general too feeble with those best qualified for it.  This inconveniency w[ould] also more felt the Nat[iona]l Gov[ernmen]t than the State Gov[ernmen]ts the sacrifices req[uired] from the distant members w[ould] much greater, and the pecuniary provisions, probably, more disproportionate. w[ould] therefore impolitic add fresh objections the [Legislative] service absolute disqualification its members.  The point question was whether this would objection with the most capable citizens.  Arguing from experience [Madison] concluded that would. 
Id. 388-89 (emphasis supplied).15 
The debate continued August 14, with Federalist Delegates continuing stress that 
any disqualification Members that was any broader than absolutely necessary prevent 
corruption was evil that would hinder the operation the national government.  Charles 
Pinckney South Carolina 
argued that the making the members ineligible offices was degrading them, and the more improper their election into the Legislature implied that they had the confidence the people; that was inconvenient, because the Senate might supposed contain the fittest men. hoped see that body become School Public Ministers, nursery Statesmen: that was impolitic, because the Legislature would cease magnet the first talents and abilities. Farrand, Records the Federal Convention 1787, 283 (1966 ed.) (emphasis original). 
Similarly, Gouverneur Morris Pennsylvania observed: Wilson supported this compromise proper balance that would prevent corruption while continuing incentives for the most talented individuals serve the Legislature: 
The proper cure said for corruption the Legislature was take from the power appointing offices [cf. supra note 14]. One branch corruption would indeed remain, that creating unnecessary offices, granting unnecessary salaries, and for that the amendment would proper remedy. animadverted the impropriety stigmatizing with the name venality the laudable ambition rising into the honorable offices the Government the members the Legislature have perhaps the hardest [and] least profitable task any who engage the service the state.  Ought this merit made disqualification? 
Id. 387. Mason and other Anti-Federalists opposed Madisons compromise, with Mason calling but partial remedy for the evil corruption.  Id. 
Why should not avail ourselves [Members] services [in the Executive Judicial Branches] the people chuse give them their confidence.  There can little danger corruption either among the people the Legislatures who are the Electors. they say, see their merits, honor the men, chuse renew our confidence them, have they not right give them preference; and can they properly abridged it. 
Id. 286-87.  And, Wilson, perhaps addressing the goals the Anti-Federalists, opined that nothing seemed wanting prostrate the Nat[iona]l Legislature, but render its members ineligible Nat[iona]l offices, [and] that means take away its power attracting those talents which were necessary give weight the Govern[ment] and render useful the people.  Id. 288. 
Despite the August debate, Madisons compromise had still not been formally adopted when August drew close. September 1787, the Conventions Committee Eleven reported out the following language: 
The Members each House shall ineligible any civil Office under the authority the United States during the time for which they shall respectively elected[.] 
Id. 483.  Reiterating their view that appointment Members should limited only situations where there possibility self-dealing undue Executive influence, the Federalist Delegates proposed limiting the prohibition only those offices created the emoluments whereof shall have been increased during the Members current term.  Id. 492. This limiting language, similar Madisons proposed compromise, passed the Convention vote five four with one abstention.  Id. 
The Convention thus adopted Madisons argument that the goal deterring Congressional self-dealing and Executive influence over the votes sitting Members Congress should balanced the goal leaving the door open wide possible allow Members move the Executive and Judicial Branches. Under this compromise, the purpose the Ineligibility Clause ensure that the best qualified persons are available for Executive and Judicial service long their service consistent with the need prevent Congressional self-dealing and undue Executive influence over the Legislature.16 
The construction the phrase shall have been encreased during advanced Defendants the only construction that consistent with this purpose.  First, the purposes that the Framers had for creating ineligibility some cases  namely prevent self-dealing Congress and undue influence over Congress the President  would not served where any increase has been repealed.  Secretary Clinton will not benefit from any increases enacted during her most recent term, and thus there danger self-dealing.  Nor there any way which the setting the emoluments could the result the cause for undue influence the President. 
Moreover, not only would barring Secretary Clintons appointment have served none the purposes served the Ineligibility Clause, would actively disserve one the key See Joseph Story, Commentaries the Constitution the United States,  864 (1970 ed.) (noting that the purpose the Ineligibility Clause was to take away, far possible, any improper bias the vote the representative, and secure the constituents some solemn pledge his disinterestedness); The Federalist No. (Hamilton), 283 (McLean 1788) (stating that the Ineligibility Clause one the important guards against the danger executive influence upon the legislative body); The Federalist No. (Madison), 147 (McLean 1788) (noting that the Ineligibility Clause prevents the Executive from purchas[ing] the guardians the people with offices). later attempt enact stricter Ineligibility Clause was defeated 1826. See 19th Cong. 52, 1-6 (Mar. 1826) (proposing that the Constitution amended follows: No Senator Representative shall appointed any civil office, place, emolument, under the authority the United States, until the expiration the Presidential term which such person shall have served Senator Representative). 
purposes behind the compromise clause that was adopted.  The drafting history makes clear that the Framers wanted prevent Member from unduly profiting from increased salary while the same time retaining eligibility for appointment when there could such undue profit, maintain the highest incentive for the most qualified individuals serve the Legislative, Executive, and Judicial Branches.  This goal reached the phrase shall have been encreased interpreted mean increased net from the beginning the Members term the time her appointment. contrast, this goal not met under Plaintiffs historical fact construction that construction would disqualify Member from Executive and Judicial service even where there possibility that she would benefit from higher salary.  Indeed, because under current law all federal offices receive annual raises January each year, Plaintiffs construction would essentially disqualify every Member Congress from every Executive and Judicial office for the duration his her term  precisely the rule that Framers rejected because would deprive the federal government needed talent.17 	Consistent Constitutional Practice Demonstrates that the Ineligibility Clause Bars Appointment Only Where the Emoluments Have Been Increased Net During the Members Current Term 
The Supreme Court has observed that traditional ways conducting government give meaning the Constitution, Mistretta United States, 488 U.S. 361, 401 (1988); see also Thornton, 514 U.S. 816 (finding that consistent Congressional practice provides evidence the general consensus the meaning the Constitution); Powell Plaintiff makes secret the fact that barring all Members from Executive and Judicial service for the entirety their respective terms the outcome that seeks this case. See Compl.  (contending that Secretary Clinton will not eligible hold any civil office under the authority the United States until the second, six-year term which she was elected expires January 2013" (emphasis supplied)). 
McCormack, 395 U.S. 486, 502 (1969) (finding history Congressional practice persuasive determining the meaning the relevant Constitutional clause). the case the Ineligibility Clause, more than century consistent practice the elected branches demonstrates understanding that the interpretation the Clause advanced Defendants the correct interpretation.  Indeed, while this matter was once the subject intense debate, even the vocal minority that once took Plaintiffs position the meaning the Ineligibility Clause has died out, and Defendants interpretation now universally embraced Congress and the Executive. the time Secretary Clintons appointment, Members had been appointed Executive Office under similar circumstances (i.e., the salary the office had been increased and then the increase repealed during the Members then-current term) least half dozen times Presidents both parties. 1876, President Grant appointed Senator Lot Morrell Secretary the Treasury.   See Senate Report 93-499, (Nov. 13, 1973).  During Morrells then-current Senate term, the salary cabinet officials, including the Treasury Secretary, had been raised from $8,000 per year $10,000 per year and then returned $8,000 per year.  See id.  Morrell was nominated and confirmed Secretary the Treasury and there known record any opposition his appointment based the Ineligibility Clause.  See id. somewhat different reaction greeted the nomination, President (and later Chief Justice) William Howard Taft, Senator Philander Knox Secretary State. 1907, while Knox was Senator, Congress increased the salary cabinet officials, including the Secretary State, from $8,000 per year $12,000 per year.  See Act May 22, 1908, ch. 186, Stat. 184, 197.  After President Taft expressed intention nominate Knox, legislation was introduced Congress reduce the salary the Secretary State $8,000 per year.  See Act March 1909, ch. 297, Stat. 845, 861. vigorous debate over the meaning the Ineligibility Clause ensued.  See Cong. Rec. 2390-415 (1909).  Ultimately, the position that Knox was constitutionally eligible serve the lower salary prevailed.  The legislation passed the House 173-110 and the Senate unanimously. Cong. Rec. 2415 (1909) (House); Cong Rec. 2205 (Senate).  Knox was confirmed unanimously. Cong. Rec. 6-7 (1909). 
The Congressional debate over interpretation the Ineligibility Clause resumed 1973 when President Nixon expressed his intent nominate Senator William Saxbe Attorney General. Saxbes Senate term had begun January 1969, and during that term, the salary the Attorney General had increased from $35,000 per year $60,000 per year.  The Executive Branch sought legislation reduce the salary the Attorney General $35,000.  Senator Robert Byrd led vigorous opposition the bill, arguing that would insufficient satisfy the Ineligibility Clause.  See Hearing Before the Committee the Judiciary 2673, 93rd Cong. (Nov. 19, 1973); 119 Cong. Rec. 37,017-26 (1973); see also 119 Cong. Rec. 38,315-48 (Nov. 28, 1973) (Senate debate); 119 Cong. Rec. 39,234-45 (House debate).  Despite his strenuous arguments and hearing which called several law professors testify, Senator Byrd failed persuade more than small minority his colleagues.  The legislation passed the House vote 261-129 and the Senate vote 75-16.  See 119 Cong. Rec. 39,245 (1974) (House); id. 38,347-48 (Senate). vote 75-10, the Senate confirmed Saxbe. See 121 Cong. Rec. 42,018 (1975). 
The confirmation Saxbe Attorney General marked the end the debate the political branches over the proper interpretation the Ineligibility Clause. 1975, when President Ford appointed Representative Robert Casey seat the Federal Maritime Commission, Congress passed legislation reducing the salary his seat the Commission (but not the seats the other Commissioners) for the duration his Congressional term.  See Act May 1980, Pub. No. 96-241, Stat. 343.  Casey was confirmed voice vote with recorded opposition from only one Senator  Senator Byrd.  See 121 Cong. Rec. 42,158 (1975). 1980, even Senator Byrd capitulated the view that had come held the overwhelming majority his colleagues.  That year, President Carter appointed Senator Edmund Muskie Secretary State.  Legislation reduced the Secretary States salary the level which had been prior Muskies then-current Senate term, see Act May 1980, Pub. 96-241, Stat. 343 (1980), and Muskie was confirmed with the votes his Senate colleagues including that Senator Byrd.  See 126 Cong. Rec. 10,279 (1980).  Indeed, speech reminiscent the Federalist Delegates speeches the importance having qualified persons serving all branches government, Senator Byrd was effusive his praise Muskies nomination and his conviction that Muskies Senate service made him uniquely qualified Secretary State that particular time.  See 126 Cong. Rec. 10,272-73 (1980) (I know man America better suited meet the challenges these difficult times than Muskie. [T]he State Departments gain the Senates loss.  What matters that the Nation continues benefit from the services Muskie.).18   Only two Senators opposed 
18As Chief Justice Marshall observed MCulloch, the fact that once-controversial legislation has won over its former critics counsels strongly favor its Constitutionality. See U.S. 402 (noting that the challenged bill initially was opposed with equal zeal and ability those concerned about the Constitutional balance between Congress and the States but then events convinced those who were most prejudiced against the measure its necessity, and holding that would require ordinary share intrepidity, assert that measure adopted under these circumstances, was bold and plain usurpation, which the constitution gave countenance). 
Muskies confirmation, and neither appeared motivated Ineligibility Clause concerns, both had voted favor confirming Saxbe. See 121 Cong. Rec. 42,018 (1975). 1993, President Clinton nominated Senator Lloyd Bentsen Secretary Treasury. The salary cabinet officials, including the Secretary the Treasury, had been increased the Ethics and Government Reform Act 1989, Pub. 101-194,  703(a)(1), 103 Stat. 1748 (1989), during Bentsens then-current Senate term.  Congress passed legislation reducing the salary Secretary the Treasury the level which had been the beginning Bentsens term. See Act Jan. 19, 1993, Pub. 103-2, 107 Stat. (1993).  Bentsen was confirmed Secretary the Treasury without opposition.  See 139 Cong. Rec. 389 (1993).  Senator Byrd was enthusiastic supporter the nomination.  See 139 Cong. Rec. 388 (1993) (I pleased support the nomination Lloyd Bentsen for Secretary the Treasury the United States.  This well-deserved nomination caps off highly successful public service career.).19 
Thus when the Secretary State Emoluments Act described above was passed, the issue the proper interpretation the Ineligibility Clause had been long settled Congress. January 21, 2009, Senator Clinton was confirmed Secretary State vote 94-2; and neither the opposing Senators cited the Ineligibility Clause basis for his vote.  See 155 Senator Byrds speeches favor the confirmations Muskie and Bentsen, which discussed each mans Senate accomplishments and their relevance the Cabinet Office was being appointed to, might seen vindication the Framers decision adopt narrow Ineligibility Clause allow the United States benefit from the service the most qualified individuals.  Similar comments were made about Secretary Clinton.  E.g., 155 Cong. Rec. S679 (Jan. 21, 2009) (statement Sen. Lugar) (She has longstanding relationships with many world leaders that could put great use the service our country. Her time the Senate has given her deep understanding how U.S. foreign policy can enriched establishing closer relationship between the executive and legislative branches.); id. S69293 (statement Sen. Reid) (Senator Clinton uniquely capable and profoundly prepared lead our State Department time unprecedented global challenges.). 
Cong. Rec. S693 (Jan. 21, 2009).20 
This long history Congressional and Presidential practice  thus provides additional reason interpret the Ineligibility Clause the way which best effectuates the intent the Framers and allows service where there possibility unjust enrichment undue Executive influence.21 Secretary Clinton one two individuals who moved directly from the Senate President Obamas cabinet.  The other Interior Secretary Salazar.  Legislation nearly identical the Secretary State Emolument Act was enacted reduce the emoluments the Office Secretary the Interior the level January 2005.  See Pub. 111-1,  123 Stat. (Jan. 16, 2009).  Secretary Salazar was confirmed without opposition the Senate voice vote.  155 Cong. Rec. S663 (Jan. 20, 2009). addition the practice Presidents Ulysses Grant, William Howard Taft, Richard Nixon, Gerald Ford, Jimmy Carter, William Jefferson Clinton, and Barack Obama appointing one more Members Executive Office under circumstances similar the ones here, the Department Justice has numerous occasions endorsed the efficacy legislation reducing the salary office means complying with the Ineligibility Clause.  Assistant Attorney General Charles Russell took this position with respect the prospective appointment Senator Knox, see Cong. Rec. 2402-03 (1909), did Acting Attorney General Robert Bork and Assistant Attorney General for the Office Legal Counsel Robert Dixon with respect the prospective appointment Senator Saxbe, see Rep. 93-499, 5-7 (Nov. 13, 1973); Hearing Before the Committee Post Office and Civil Service 2673, 93rd Cong., 8-16 (Nov. 18, 1973); Hearing Before the Committee the Judiciary 2673, 93rd Cong., 69-74 (Nov. 19, 1973). See also Op. O.L.C. 298, 300 (1979); Op. O.L.C. 286, 289-90 (1979). Assistant Attorney General for the Office Legal Counsel Charles Cooper reached the opposite conclusion 1987 unpublished memorandum.  See Memorandum for the Counselor the Attorney General, from Charles Cooper, Assistant Attorney General, Office Legal Counsel, Re: Ineligibility Sitting Congressman Assume Vacancy the Supreme Court (Aug. 24, 1987) (attached Ex. 2). However, the Office Legal Counsel has now concluded that the 1987 opinion does not reflect the best reading the Ineligibility Clause, and written opinion, the Office has advised that sitting member Congress may appointed office for which the salary has been increased during the members term, provided the salary increase rolled back before the appointment.  See Memorandum for the Attorney General, from David Barron, Acting Assistant Attorney General, Office Legal Counsel, Re: Validity Statutory Rollbacks Means Complying with the Ineligibility Clause (May 20, 2009) (attached Ex. 1). 

CONCLUSION 
For the reasons stated above, Defendants Motion Dismiss should granted. 
May 20, 2009 Respectfully submitted, 
TONY WEST Assistant Attorney General 
JEFFREY TAYLOR United States Attorney 
JENNIFER RIVERA Branch Director 
SUSAN RUDY Assistant Branch Director
   /s/ Jeffrey Smith                       
JEFFREY SMITH (D.C. Bar 467936) ERIC SOSKIN (PA Bar 200663) Attorneys United States Department Justice Civil Division, Federal Programs Branch Massachusetts Ave., NW, Washington, D.C. 20001 Room 7144 Tel: (202) 514-5751 Fax: (202) 616-8202 
Counsel for Secretary State Hillary Rodham Clinton and the United States Department State



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