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Case ‘i:0Q—CV~Q{)’i71—F%BW~JR Document 12-3 Fiied 05/20/2009 Page

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Office Legal Counsel

Omen the

Wdnhlngrosv. D.C. .Z_C5.5.3}2
Amuuiit Anomcy Contra}


Re:_ Ine1igihi1ity_of Sitting Congressman Assume Vacaney the'Supreme Court

This memorandum confirm-advice previously given to‘you
orally that Article i;'sectioh the Constitution prohibfté
all Circumstances the appointment those.uow serving
Senators and~Members the House Repreeemtatives the:
current vacancy the Faupreme ts:‘:1.1x“t. ‘-

The Ineligibility Clause the Constitution provides: Senator Representative shall, during the Time for
which was elected, appointea any civil Office
under the Authority the United States, which shall
have been created, the Emoluments whereof shall havem
been, encreasecl durintzz such [times (and. Person holding A-:.'é_=.,_‘
any.Of£ice_under the United States, shall Member
'»- either House during his.Continuance Office
?(§mphasis~added)g f“'w- J3“:
Art. sec. cl._2.

.The salaries all Associate Supreme Court Justices were
increased February 1987 $115,000. Therefore, whatever
the ultimate fate the salary applicable the supreme Court
seat now vacant, plain that the 5Emoluments" that "civil
office" were Fencreased" during the fiwime for which" each now-
seated congressman "was e1eoted3"- The-plain meaning this.
clause thus di3qua1ifies7thOSe now serving Congress from being
appointed the Supreme Court.‘ ‘ »»i Proposed increases judicial salaries are transmitted
Congress the President, based upon the recommendations the
commission Executive Salaries, which was created Pub1ic»Law
$9=190. Congress may then_take action block the proposed
Lncreases. ‘If“it does not,-the inoreases into effect ‘Wm’
automaticallyt‘ The increase the salaries Associate Supreme
Court Justices was includéd’in the"Pre$ident?s~Fisca1 Year 1988
Budget Message,‘and Congrese allowed the'intrease take efifect.


Case ‘i:{)Q—cV—Q{)’i71—FiBW~JR ilocumeni: 12-3‘ Fiied 05/20/2009 Page  ..=-.u..:«::--:;~:.~. -12:»-'» »' :-':;.-‘~':‘»:.'“ --r.~=-.-=

Although this would seem end the matter, fact number‘ past administrations have circumvented the effect this

clause. This has been accomplished having dongress restore
the salary the office which the President-sought appoint sitting congressman the amount paid for that office when the
prospective nominee assumed his seat Congress. (For the sake” clarity and convenience will refer the salary applicable’ the time the congressman took his congressional seat the.,g
"original salary" and the office to-which the ?resident seeks
nominate congressman the "vacant office.") therefore
necessary examine this practice determine it.comports;.
with either the letter the spirit the Constitution.

conclude that does not, and therefore recommend against the

use such device. ,,;~

haw Although the Records the CondtitutionalIConvention"do 35:”

directly address this specific issue,'they nonetheless provide-ii
Valuable guidance two VfiySLw,they.feVefll the concerns of.thefl4
Founders prompting thein inclucion.of this clause the ggfi
Constitution, and they Show that the artifice reducing the gfi,

salary particular vacant.seét was way contemplated.f:_”

Specifically,.they,reveal that the Fgamersl concerns extended .fl
beyond merely the prec1$e'amount_that.wou1d be.pa1d congressmen
assuming vacant office.

The language first proposed the Constitutional Convention
would have permanently-barred all members the House from

assuming any seat created during their tenure Congress. Many”

supported that proposal...For_example,,James.Madison stated
unequivocally: Vf,the opinion that office ought open member; which may created augmented while he’i the legislature.“, M.,Earrand} The Records the Fedefel
Convention 1787 380’(l966)(heteinafter lFarnand“). Roger f'l
Sherman was "for entirely incapacitating membewo the “ ’*'
Legislature,V thought their eligibility offices would giye=
too much.influence the Exeoutivegx said the incapacity ;fin
ought least extended_to cases where the salary should beg“
increased, well created,'during the term the member.
mentioned also the expedient which the restriction could be;;,
evaded wit: existing officer might translated
office created, and member of-the Legislature then put into.
the office vacated (emphasis~in‘original)q" §'Farrand 490.“=
Edmund Randolph'?was inflexibly fixed ageinstginviting men intog,
the Legislature by-the pronpect being appointed offices.3h:

3d. 491» -George Mason agreed well,. the end, the motion her all legislators from ever
taking offices created for which the salaries were increased.7
during their term Congress was defeated. Inilarge part this
was due the fact that the "first Legislature [would] ‘”
composed the ablest men found," id. (remarks

Pinkney), whom they did not wish prevent forever from holding_.

the many offices that would created during that term
Congress. But the-serious considenation given the idea

Case ‘i:{)S3—cv—€I3{)17‘H"-iBW~JR iliocurneni: 12-3 ‘ Fiied 05/20/2009 Page

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complete bar helps put perspective the Founders: concern
this question, and their view its importance maintaining,
the proper balance between the three coordinate branches.

opinions the Attorney General going back over one hundred

years further demonstrate the force.of_the Ineligibility Clauseig

For example, Attorney General Benjamin Harris Brewster held that
Senator Kirkwood, who had been elected term expiring l883,__
could not assume the post o£'tarifif commissioner 1882. That‘f
Kirkwood had not-been Senator when the-office was created, “h
having resigned March 1381 serve Secretary the

Interior, did not change-Harrison's analysis. Op. Att'y Gene
365 (1882). there opined: ” must controlled the positive terms the
provision.of the Constitution, .The language precise
and clear, and, opinion, disables him from re-
ceiving the appointment. absolute,
expressed the .-, .-constitution, and behind that
can not go, but must accept presented
regarding its.application this case..-~—,


Acting Attorney General Holmes Conrad echoed Harrison's

words twelve years later-in;the.faoe-an attempted circumvention the Ineligibility Clause. that case Senator Matthew
Ransom was appointed be-ambassador Mexico, despite his
having voted inorease;the,salary'of that position 1891.,
His term was scheduled end March 4,'l895. was nominated
and confirmed February 23rd, but-his commission was not;iA
signed until March 1835, .Acting”AttorneyeGeneral Conrad could
not have been_c1earer:.-?Mr;7Ransom was not, opinion. .fQ
eligible to_appointment that office." -21 op; Att'y Gen.j2ll;
214 (1895). wfl'

iln 1922 Attorney General Harry Daugherty articulated the two_

events that must coincide for_a congressman to-be disqualified ”
from assuming office because of_the Ineligibility Clause. The next year Attorney General Brewster opined that the
Ineligibility Clause prohibits.even the ggmiggtign and confir¢;_
mation a.sitting congressman to'an office created for which
the salary has been increased.during his term office, even if;
the commission_is not signed until afiter his ineligibility ""”
ceases. Under this analysis,'e_nt' Reagamcould not nominate congressman the fall l986.—¥ even assnming that the
Senate would confirm the candidate and sign the congressman's
commission January 4,.l989, §;;g§.the congressman’s term (andi
thus ineligibility) has ended, but before the Ptesident°s term?
ends January 20, l9B9.:.See,2l op, Att'y-Gen; 211, 214 fl
(l895)("Although might have been commissioned the 5th day March, yet was nominated and confirmed the 23rd

Case ‘i:{)9nev~Q{)’i71wRBW~JR flocument 1-.:?_«3. Féied 05/20/2009 Page  ‘II,'.‘:.‘""1‘_I‘_"_ 3‘,;e::lf"'-~'.)‘,!'. "1'-“"-" .'u_ .," ‘ ""'

Thus, having concluded that there constitutional
impediment raising the salary congressman during his
unexpired congressional term. hut after his appointment the
office, becomes evident that undermining the Ineligibxlity
Clause extremely simple matter. The former colleagues
any congressman taking office virtue reduced salary could
ensure, pursuant prearranged agreement otherwise, that
the incgeased salary will restored-as soon takes
office. This would serve diminish the degree
congressman‘s impartiality least the appearance
thereof —— with respect the salaries ehecutive and judicial
offices covets, thus frustrating the general objective the
constitutional provision, well violating the precise
prohibition. —' ~u--l.

8.(Qont;); 1979 had not yet taken effect: in.fact, had not yet
been transmitted Congress. ‘ .H.

9'In his testimony before the Judiciary Committee 1973,
Professor van Alstyne considered the three possibilities the


event increase Senator Saxbe's salary the moment took’

office: (i) the increase would effective; ii) the adoption
would once disqualify him Attorney General; and (iii) he;
would remain Attorney General,_but would denied the
increase. Saxbe Hearings, at_53m' Professor Van Alst ne, "the
plain sense and the history [the Ineligibility Clause?
persuade that the proper answer the last one —— would
not automatically disqualified; but would precluded from
realizing any personal benefit during the balance the term he,
was elected the Senator". Thus, Professor Van Alstyne's ‘
solution this problem infer implicit prohibition
against post hoc salary increases counteract the implicit
“Saxbe“ exception the lneligibility Clause's express ‘g
prohibition. Although this theory certainly serves get around
the problem raised our opinion concerning Judge Mikva, the
constitutional.provision itself way contemplates
supports this result. our view, it_is much more logical, and~
much more faithful the,Framer's intent, simply give effectu the plain language the ineligibility Clause.- Although it_does.not_a£fect-our constitutional analysis, we,
note well that there are policy concerns hetehthat,were not
present the previous cases discussed above. ‘Each the three
offices for which the retroactive salary reduction device was
used the past were the President's cabinet.‘ Here,
judicial office involvedpethus raising policy concerns about
the independence the judiciary. There long and
beneficial tradition that a1l_judges the same rank receive the
same pay. This avoids inequities and jealousies among members
the bench and, more fundamentally, congressional efforts
influence judicial decisionvmahing through differential treatment similarlymsituated_judgesn indeed, similar_concerns about
Congress: power influence the judiciary through manipulation salaries led the Founders prohibit any decrease


Case1:{)Q—cv—€I3{)’i71—FiBW~JR iZ.5ocument12—3 Fiied es/20/2009 Pagegoim

.'S.;';.'. closing, emphasize point that would need emphasis
were not too often minimized discarded. Chief Justice
?arsh?l1 said Gibbons den, U.S. Wheat.) 133

1824 méh, whose intentions.require concealment,
generally employ the words which most directl and
aptly express the ideas they intend convey the
enlightened patriots who framed our constitution and
the people who adopted it, must understood have
employed words their natural sense, and have
intended what they have said.

For this reason, departing from the actual words the hi;
constitutional text cannot justified the grounds that the
departure nevertheless fairly comports with some more
generalized, albeit unexpressed, purpose the Framers. any
event, such departure most assuredly unjustified where,
here, does not effectuate,the.Framerls broader objectives
‘fully does literal interpretation the provision's
specific terms. Thus, while the language the Ineligibility
Clause itself fully sufificient reason prohibit sitting"
congressman's appointment, such prohibition also more
faithfully furthers the Framer‘s broader concerns. Given all
that, countenance stratagems that seek avoid the force anav
effect the Constitutiopis own terms this context
particularly ill—advised° (Cont.) judge's salary during his tenufe the bench. Art.
II, sec. while this prohibition against reducing the salary sitting judge clearly not implicated here, the policy
concern animating the constitutional provision nonetheless
cautions against any precedent authorizing Congress pay
particular judge less than his colleagues. -4'
“I not regard the Constitution like the Internal Revenue

Code which contemplates avoidance evasionsg" Saxbe Hearin (statement Professor Kurland).


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Case 1:Q9—cvm(H)171—RBWw.JR Document ’i.?—3 Fiie-ad 05/'20/2339 Page ‘H23 02‘

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CONCLUSION sum, believe that the language and purpose the
Ineligibility Clause prohibits sitting congressman from being
appcinted the Supreme Court, even his salary Justice~ first reduced the amount was when began his most
recent term. ‘ ’ c’.."-.‘_é¢.""“  
Charles Coope “€§’7?
Assistant Attorney General

Office Legal Counsel