Legality
Over time, the Saxbe fix has become politically uncontroversial. Both Democratic and Republican Presidents have used the fix, and indeed Republican outgoing President George H. W. Bush helped Democratic incoming President Bill Clinton execute the fix by signing it into law on the eve of Clinton's inauguration. The fixes that have been enacted for Obama's cabinet have passed in the both the House and the Senate without amendment and by unanimous consent. Outgoing Republican President George W. Bush signed the Saxbe fixes for both Hillary Clinton and Ken Salazar into law for the incoming Democratic Obama administration.
The constitutionality of the fix has been much debated, however, and the U.S. Supreme Court has never directly ruled on it. Critical review of the clause begins with a study of the terms in the plain language of the clause: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time ...." All of the terms have been at issue in past controversies and many of the terms have been well-settled. Historically, the excluded class of individuals affected by the clause has not been an issue: all scholars have agreed that the clause refers exclusively to all members of Congress. The clause uses the verb "elected". If a senator serving under an appointment to fill a vacancy in an unexpired term accepted a nomination to federal office before the expiration of his or her term, this might be an issue.
The phrase "During the time for which he was elected" has not been controversial. Justice Joseph Story has expounded in his Commentaries on the Constitution of the United States that the disqualifying event expires at the conclusion of the elected term in which it occurred. This view is commonly accepted. Moreover, Department of Justice memoranda, outlining official opinions by United States Attorney General, hold that "the Ineligibility Clause covers only increases during the term that a Member of Congress is currently serving". This principle was applied, for example, to the question of whether President Clinton could appoint Representative Bill Richardson as Ambassador to the United Nations despite a salary increase prior to his current term, and whether President Harding could appoint Senator William Kenyon as a Judge despite the Congressional increase of judicial salaries during his previous term. Opinions issued by the Clinton administration Office of Legal Counsel often presupposed the application of the clause, and conceded that "he tradition of interpreting the Clause has been 'formalistic' rather than 'functional'". Another clarification came in 1969, when newly re-elected Representative Melvin Laird was President-elect Nixon's choice for Secretary of Defense and Congress was expected to raise the pay of Cabinet members in the new term. Attorney General Ramsey Clark gave an official opinion, which Laird followed, that Laird could be sworn in and serve in the new term from January 3 to January 20 (when Nixon would take office) without running afoul of the Clause, as long as he joined the cabinet before the pay raise went into effect.
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