Ineligibility Clause
Encyclopedia
The Ineligibility Clause, one of the two clauses often called the Emoluments Clause, and sometimes also referred to as the Incompatibility Clause or the Sinecure Clause, is found in Article 1, Section 6, Clause 2 of the United States Constitution
. It places limitations upon the employment of members of Congress
and prohibits employees of the Executive Branch
from serving in Congress during their terms in office. The name Ineligibility Clause is only used by a minority of writers, as compared to the name Emoluments Clause.
The clause states:
by ensuring that no member of the Executive or Judicial Branches of the Federal Government
could simultaneously serve in the Legislative Branch, and 2) to prevent Congress
from conspiring to create offices or increase federal officials' salaries with the expectation that members of Congress would later be appointed to these posts. The clause was drafted to prevent similar problems which had occurred in the British Parliament
, but the records of the Philadelphia Convention
suggest that there was considerable disagreement among the delegates as to what the scope of the disabilities created by the clause should be. The clause does not bar simultaneous service as a federal judge and member of the executive branch, and under John Adams
, John Marshall
served as both United States Secretary of State
and Chief Justice of the United States
. It is not clear whether a congressman could hold a reserve commission in the armed forces as the only case was never ruled upon due to lack of legal standing.
The prominent anti-Federalist
politician Luther Martin
reported that the clause, as originally drafted by the Philadelphia Convention, would have operated to prevent members of Congress from being appointed to offices in either the Federal government and the governments of their respective home states for the period which they were elected to serve, but that this part of the clause drew objections and was stricken from the article. Luther also criticized the clause itself, feeling that it would be ineffective in preventing this type of self-dealing, because members of Congress could easily create new offices, arrange for others to be appointed to them, and then fill the vacancies created by the movement of these government officers to new positions.
and other federal government offices.
Among the earliest questions to be addressed under the clause was whether a person serving as a United States Attorney
could continue to serve in that capacity after being elected to a seat in Congress. In 1816, Samuel Herrick was elected to the 15th United States Congress
while still serving as U.S. Attorney for the District of Ohio. He was not allowed to take his seat until the House of Representatives
had determined whether his service as a U.S. Attorney created a conflict under the clause. Finally, in December 1817, the United States House Committee on Elections
determined that there was no conflict, because even though Herrick had been elected to Congress, he had not taken the Congressional oath of office
while he was still serving as a U.S. Attorney.
The clause has been interpreted as barring the appointment of a member of Congress to a post in another branch of government only if the pay raise occurred during a single term for which the member had been elected. In other words, the disability does not carry over to subsequent terms in office. This is in line with the view expressed about the clause by U.S. Supreme Court
Justice Joseph Story
in his Commentaries on the Constitution of the United States. This particular issue came before United States Attorney General
Harry M. Daugherty
when President Calvin Coolidge
sought to appoint Senator William S. Kenyon
to the United States Court of Appeals for the Eighth Circuit
. During Senator Kenyon's term (which was set to expire on March 4, 1919), Congress increased judicial salaries. Kenyon was then reelected in 1918 for another term which was to begin immediately upon the expiration of his previous term of office. Coolidge nominated Kenyon to the court in 1922. When Coolidge requested Daugherty's formal opinion on Kenyon's eligibility, Daugherty (relying in part upon Story's Commentaries) explained that Kenyon would have been disqualified only until the end of his term during which salaries were actually raised, not for the next following term for which he had been elected.
The converse of this position, however, is that the disability continues for the term for which the Senator or Congressman was elected, rather than for his or her actual length of time in office, so that mere resignation from the Congress does not remedy the disability created by the clause. This is the view Attorney General Benjamin H. Brewster
took in advising President Chester A. Arthur
that former Iowa governor and U.S. Senator Samuel J. Kirkwood
was ineligible for appointment to the U.S. Tariff Commission, even though Kirkwood had already resigned his Senate seat to become Secretary of the Interior
. Brewster reasoned that because the Tariff Commission had been created in 1882, and because Kirkwood's Senate term would have expired in 1883 had he not first resigned, that Kirkwood was ineligible for the office.
The clause was at issue in 1937, when fifty-one-year-old sitting United States Senator from Alabama Hugo Black
was appointed an Associate Justice of the Supreme Court. Congress had recently increased the pension
available to Justices retiring at the age of seventy. The emolument was one that Black would not derive benefit from for some nineteen years and only if he survived until that age. Furthermore, Time
points out that the Retirement Act for which Black had voted merely guarantees Justices pensions against reduction. When Black's appointment was challenged in the U.S. Supreme Court, the court declined to hear the case, holding that the petitioner lacked standing
.
Perhaps the most widely-known conflict involving this clause concerned the appointment of Senator
William B. Saxbe
of Ohio
to the post of United States Attorney General
by then-President Richard Nixon
, in the aftermath of the Saturday Night Massacre
. The salary of the Attorney General had been increased in 1969, in the first year of the Senate term that Saxbe was still serving in 1973. Nixon's solution was to have Congress reduce the Attorney General's salary to the value it had before Saxbe took office. This maneuver, known in legal and political circles as the Saxbe fix
, has been used a number of times since, though its legality is not universally agreed-upon.
The Justice Department's
Office of Legal Counsel
is often called upon by the President to determine whether an appointment is in violation of the clause. This was the necessary when President Bill Clinton
appointed Bill Richardson as United States Ambassador to the United Nations
and appointed William Cohen
as Secretary of Defense
, as well as when George W. Bush
appointed Tony P. Hall
Ambassador to the United Nations
' Food and Agriculture Organization
. In none of these cases, however, was the appointee chosen by the President prohibited from taking office.
In late 2008, the question was raised whether the clause would apply to the appointment of Senator Hillary Rodham Clinton
as Secretary of State
. Subsequently, Congress reset the pay for the position to its level prior to Senator Clinton's election to the Senate.
Interestingly, there has been very little academic commentary on the clause, and virtually no judicial explication of it. The only two lawsuits which have been brought challenging appointments under the clause have been dismissed on grounds of lack of standing.
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. It places limitations upon the employment of members of Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
and prohibits employees of the Executive Branch
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
from serving in Congress during their terms in office. The name Ineligibility Clause is only used by a minority of writers, as compared to the name Emoluments Clause.
The clause states:
Purpose and origins
The purpose of the clause is twofold: 1) to protect separation of powersSeparation of powers under the United States Constitution
Separation of powers is a political doctrine originating from the United States Constitution, according to which the legislative, executive, and judicial branches of the United States government are kept distinct in order to prevent abuse of power. This U.S...
by ensuring that no member of the Executive or Judicial Branches of the Federal Government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
could simultaneously serve in the Legislative Branch, and 2) to prevent Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
from conspiring to create offices or increase federal officials' salaries with the expectation that members of Congress would later be appointed to these posts. The clause was drafted to prevent similar problems which had occurred in the British Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
, but the records of the Philadelphia Convention
Philadelphia Convention
The Constitutional Convention took place from May 14 to September 17, 1787, in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from...
suggest that there was considerable disagreement among the delegates as to what the scope of the disabilities created by the clause should be. The clause does not bar simultaneous service as a federal judge and member of the executive branch, and under John Adams
John Adams
John Adams was an American lawyer, statesman, diplomat and political theorist. A leading champion of independence in 1776, he was the second President of the United States...
, John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
served as both United States Secretary of State
United States Secretary of State
The United States Secretary of State is the head of the United States Department of State, concerned with foreign affairs. The Secretary is a member of the Cabinet and the highest-ranking cabinet secretary both in line of succession and order of precedence...
and Chief Justice of the United States
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
. It is not clear whether a congressman could hold a reserve commission in the armed forces as the only case was never ruled upon due to lack of legal standing.
The prominent anti-Federalist
Anti-Federalism
Anti-Federalism refers to a movement that opposed the creation of a stronger U.S. federal government and which later opposed the ratification of the Constitution of 1787. The previous constitution, called the Articles of Confederation, gave state governments more authority...
politician Luther Martin
Luther Martin
Luther Martin was a politician and one of United States' Founding Fathers, who refused to sign the Constitution because he felt it violated states' rights...
reported that the clause, as originally drafted by the Philadelphia Convention, would have operated to prevent members of Congress from being appointed to offices in either the Federal government and the governments of their respective home states for the period which they were elected to serve, but that this part of the clause drew objections and was stricken from the article. Luther also criticized the clause itself, feeling that it would be ineffective in preventing this type of self-dealing, because members of Congress could easily create new offices, arrange for others to be appointed to them, and then fill the vacancies created by the movement of these government officers to new positions.
Political and legal history
The Ineligibility Clause has resulted in some conflicts over potential appointments of Representatives and Senators to various Cabinet postsUnited States Cabinet
The Cabinet of the United States is composed of the most senior appointed officers of the executive branch of the federal government of the United States, which are generally the heads of the federal executive departments...
and other federal government offices.
Among the earliest questions to be addressed under the clause was whether a person serving as a United States Attorney
United States Attorney
United States Attorneys represent the United States federal government in United States district court and United States court of appeals. There are 93 U.S. Attorneys stationed throughout the United States, Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands...
could continue to serve in that capacity after being elected to a seat in Congress. In 1816, Samuel Herrick was elected to the 15th United States Congress
15th United States Congress
-Leadership:- Senate :* President: Daniel D. Tompkins * President pro tempore:** John Gaillard , elected March 4, 1817** James Barbour , elected February 15, 1819- House of Representatives :*Speaker: Henry Clay -Members:...
while still serving as U.S. Attorney for the District of Ohio. He was not allowed to take his seat until the House of Representatives
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
had determined whether his service as a U.S. Attorney created a conflict under the clause. Finally, in December 1817, the United States House Committee on Elections
United States House Committee on Elections
The United States House Committee on Elections is a former standing committee of the United States House of Representatives.Article 1, section 5, of the Constitution of the United States specifies: "Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members." The...
determined that there was no conflict, because even though Herrick had been elected to Congress, he had not taken the Congressional oath of office
Oath of office
An oath of office is an oath or affirmation a person takes before undertaking the duties of an office, usually a position in government or within a religious body, although such oaths are sometimes required of officers of other organizations...
while he was still serving as a U.S. Attorney.
The clause has been interpreted as barring the appointment of a member of Congress to a post in another branch of government only if the pay raise occurred during a single term for which the member had been elected. In other words, the disability does not carry over to subsequent terms in office. This is in line with the view expressed about the clause by U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
Justice Joseph Story
Joseph Story
Joseph Story was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845. He is most remembered today for his opinions in Martin v. Hunter's Lessee and The Amistad, along with his magisterial Commentaries on the Constitution of the United States, first...
in his Commentaries on the Constitution of the United States. This particular issue came before United States Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
Harry M. Daugherty
Harry M. Daugherty
Harry Micajah Daugherty was an American politician. He is best known as a Republican Party boss, and member of the Ohio Gang, the name given to the group of advisors surrounding president Warren G...
when President Calvin Coolidge
Calvin Coolidge
John Calvin Coolidge, Jr. was the 30th President of the United States . A Republican lawyer from Vermont, Coolidge worked his way up the ladder of Massachusetts state politics, eventually becoming governor of that state...
sought to appoint Senator William S. Kenyon
William Squire Kenyon
William Squire Kenyon was a Republican U.S. Senator from Iowa, and a judge of the U.S. Court of Appeals for the Eighth Circuit.-Background:...
to the United States Court of Appeals for the Eighth Circuit
United States Court of Appeals for the Eighth Circuit
The United States Court of Appeals for the Eighth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Arkansas* Western District of Arkansas...
. During Senator Kenyon's term (which was set to expire on March 4, 1919), Congress increased judicial salaries. Kenyon was then reelected in 1918 for another term which was to begin immediately upon the expiration of his previous term of office. Coolidge nominated Kenyon to the court in 1922. When Coolidge requested Daugherty's formal opinion on Kenyon's eligibility, Daugherty (relying in part upon Story's Commentaries) explained that Kenyon would have been disqualified only until the end of his term during which salaries were actually raised, not for the next following term for which he had been elected.
The converse of this position, however, is that the disability continues for the term for which the Senator or Congressman was elected, rather than for his or her actual length of time in office, so that mere resignation from the Congress does not remedy the disability created by the clause. This is the view Attorney General Benjamin H. Brewster
Benjamin H. Brewster
Benjamin Harris Brewster was an attorney and politician from New Jersey, who served as United States Attorney General from 1881 to 1885.-Early life:...
took in advising President Chester A. Arthur
Chester A. Arthur
Chester Alan Arthur was the 21st President of the United States . Becoming President after the assassination of President James A. Garfield, Arthur struggled to overcome suspicions of his beginnings as a politician from the New York City Republican machine, succeeding at that task by embracing...
that former Iowa governor and U.S. Senator Samuel J. Kirkwood
Samuel J. Kirkwood
Samuel Jordan Kirkwood , was an American politician best known as Iowa's American Civil War Governor. He also served in the U.S. Senate and as U.S. Secretary of the Interior.-Early life and career:...
was ineligible for appointment to the U.S. Tariff Commission, even though Kirkwood had already resigned his Senate seat to become Secretary of the Interior
United States Secretary of the Interior
The United States Secretary of the Interior is the head of the United States Department of the Interior.The US Department of the Interior should not be confused with the concept of Ministries of the Interior as used in other countries...
. Brewster reasoned that because the Tariff Commission had been created in 1882, and because Kirkwood's Senate term would have expired in 1883 had he not first resigned, that Kirkwood was ineligible for the office.
The clause was at issue in 1937, when fifty-one-year-old sitting United States Senator from Alabama Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
was appointed an Associate Justice of the Supreme Court. Congress had recently increased the pension
Pension
In general, a pension is an arrangement to provide people with an income when they are no longer earning a regular income from employment. Pensions should not be confused with severance pay; the former is paid in regular installments, while the latter is paid in one lump sum.The terms retirement...
available to Justices retiring at the age of seventy. The emolument was one that Black would not derive benefit from for some nineteen years and only if he survived until that age. Furthermore, Time
Time (magazine)
Time is an American news magazine. A European edition is published from London. Time Europe covers the Middle East, Africa and, since 2003, Latin America. An Asian edition is based in Hong Kong...
points out that the Retirement Act for which Black had voted merely guarantees Justices pensions against reduction. When Black's appointment was challenged in the U.S. Supreme Court, the court declined to hear the case, holding that the petitioner lacked standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
.
Perhaps the most widely-known conflict involving this clause concerned the appointment of Senator
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
William B. Saxbe
William B. Saxbe
William Bart "Bill" Saxbe was an American politician affiliated with the Republican Party, who served as a U.S. Senator from Ohio, as U.S. Attorney General under Presidents Richard Nixon and Gerald R. Ford, and as United States Ambassador to India.At the time of his death, Saxbe was the...
of Ohio
Ohio
Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...
to the post of United States Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
by then-President Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
, in the aftermath of the Saturday Night Massacre
Saturday night massacre
The "Saturday Night Massacre" was the term given by political commentators to U.S. President Richard Nixon's executive dismissal of independent special prosecutor Archibald Cox, and the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus on October 20,...
. The salary of the Attorney General had been increased in 1969, in the first year of the Senate term that Saxbe was still serving in 1973. Nixon's solution was to have Congress reduce the Attorney General's salary to the value it had before Saxbe took office. This maneuver, known in legal and political circles as the Saxbe fix
Saxbe fix
The Saxbe fix, or salary rollback, is a mechanism by which the President of the United States, in appointing a current or former member of the United States Congress whose elected term has not yet expired, can avoid the restriction of the United States Constitution's Ineligibility Clause...
, has been used a number of times since, though its legality is not universally agreed-upon.
The Justice Department's
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
Office of Legal Counsel
Office of Legal Counsel
The Office of Legal Counsel is an office in the United States Department of Justice that assists the Attorney General in his function as legal adviser to the President and all executive branch agencies.-History:...
is often called upon by the President to determine whether an appointment is in violation of the clause. This was the necessary when President Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
appointed Bill Richardson as United States Ambassador to the United Nations
United States Ambassador to the United Nations
The United States Ambassador to the United Nations is the leader of the U.S. delegation, the U.S. Mission to the United Nations. The position is more formally known as the "Permanent Representative of the United States of America to the United Nations, with the rank and status of Ambassador...
and appointed William Cohen
William Cohen
William Sebastian Cohen is an author and American politician from the U.S. state of Maine. A Republican, Cohen served as Secretary of Defense under Democratic President Bill Clinton.-Early life and education:...
as Secretary of Defense
United States Secretary of Defense
The Secretary of Defense is the head and chief executive officer of the Department of Defense of the United States of America. This position corresponds to what is generally known as a Defense Minister in other countries...
, as well as when George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
appointed Tony P. Hall
Tony P. Hall
Tony Patrick Hall is an American politician who served as a Democrat from Ohio in the U.S. House of Representatives for more than 20 years....
Ambassador to the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
' Food and Agriculture Organization
Food and Agriculture Organization
The Food and Agriculture Organization of the United Nations is a specialised agency of the United Nations that leads international efforts to defeat hunger. Serving both developed and developing countries, FAO acts as a neutral forum where all nations meet as equals to negotiate agreements and...
. In none of these cases, however, was the appointee chosen by the President prohibited from taking office.
In late 2008, the question was raised whether the clause would apply to the appointment of Senator Hillary Rodham Clinton
Hillary Rodham Clinton
Hillary Diane Rodham Clinton is the 67th United States Secretary of State, serving in the administration of President Barack Obama. She was a United States Senator for New York from 2001 to 2009. As the wife of the 42nd President of the United States, Bill Clinton, she was the First Lady of the...
as Secretary of State
United States Secretary of State
The United States Secretary of State is the head of the United States Department of State, concerned with foreign affairs. The Secretary is a member of the Cabinet and the highest-ranking cabinet secretary both in line of succession and order of precedence...
. Subsequently, Congress reset the pay for the position to its level prior to Senator Clinton's election to the Senate.
Interestingly, there has been very little academic commentary on the clause, and virtually no judicial explication of it. The only two lawsuits which have been brought challenging appointments under the clause have been dismissed on grounds of lack of standing.
External links
- Annotations on the Clause from Justia.com
- Resources on the Ineligibility Clause, from The Founder's Constitution project at the University of ChicagoUniversity of ChicagoThe University of Chicago is a private research university in Chicago, Illinois, USA. It was founded by the American Baptist Education Society with a donation from oil magnate and philanthropist John D. Rockefeller and incorporated in 1890...