Ineligibility Clause - Political and Legal History

Political and Legal History

The Ineligibility Clause has resulted in some conflicts over potential appointments of Representatives and Senators to various Cabinet posts 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 the 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 that 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 Kirkwood's Senate term would have expired in 1883 if he had 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 19 years and only if he survived that long. Furthermore, Time points out that the Retirement Act for which Black had voted merely guaranteed 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.

A related question was avoided by Senator Clinton nearly eight years earlier. Although the First Lady of the United States receives no salary, she holds spending and hiring authority concerning areas under her White House East Wing and residence purview. Her daughter, Chelsea Clinton, had often served as White House hostess or de facto acting First Lady during Clinton's Senatorial campaign. For the fortnight between Hillary Clinton taking office as a Senator and the expiration of Bill Clinton's presidency, Hillary Clinton abdicated the office and authority of First Lady in favor of Chelsea Clinton as Acting First Lady, negating the question of whether her White House authority violated the Ineligibility Clause.

Interestingly, there has been very little academic commentary on the clause and virtually no judicial explication of it. The only two lawsuits brought challenging appointments under the clause have been dismissed on grounds of lack of standing.