Clause 2. 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; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
DISABILITIES OF MEMBERS
Appointment to Executive Office
The reasons for excluding persons from offices, who have been concerned in creating them, or increasing their emoluments, are to take away, as far as possible, any improper bias in the vote of the representative, and to secure to the constituents some solemn pledge of his disinterestedness. The actual provision, however, does not go to the extent of the principle; for his appointment is restricted only ‘during the time, for which he was elected’; thus leaving in full force every influence upon his mind, if the period of his election is short, or the duration of it is approaching its natural termination.458 As might be expected, there is no judicial interpretation of the language of the clause and indeed it has seldom surfaced as an issue.
In 1909, after having increased the salary of the Secretary of State,459 Congress reduced it to the former figure so that a Member of the Senate at the time the increase was voted would be eligible for that office.460 The clause became a subject of discussion in 1937, when Justice Black was appointed to the Court, because Congress had recently increased the amount of pension available to Justices retiring at seventy and Mr. Black’s Senate term had still some time to run. The appointment was defended, however, with the argument that inasmuch as Mr. Black was only fifty-one years of age at the time, he would be ineligible for the increased emolument for nineteen years and it was not as to him an increased emolument.461 In 1969, it was briefly questioned whether a Member of the House of Representatives could be appointed Secretary of Defense because, under a salary bill enacted in the previous Congress, the President would propose a salary increase, including that of cabinet officers, early in the new Congress which would take effect if Congress did not disapprove it. The Attorney General ruled that inasmuch as the clause would not apply if the increase were proposed and approved subsequent to the appointment, it similarly would not apply in a situation in which it was uncertain whether the increase would be approved.462chanrobles-red
458 2 J. STORY, COMMENTARIES ON THE CONSTITUITON OF THE UNITED STATES § 864 (1833).
459 34 Stat. 948 (1907).
460 35 Stat. 626 (1909). Congress followed this precedent when the President wished to appoint a Senator as Attorney General and the salary had been increased pursuant to a process under which Congress did not need to vote to approve but could vote to disapprove. The salary was temporarily reduced to its previous level. 87 Stat. 697 (1975). See also 89 Stat. 1108 (1975) (reducing the salary of a member of the Federal Maritime Commission in order to qualify a Representative).
461 The matter gave rise to a case, Ex parte Albert Levitt, 302 U.S. 633 (1937), in which the Court declined to pass upon the validity of Justice Black’s appointment. The Court denied the complainant standing, but strangely it did not advert to the fact that it was being asked to assume original jurisdiction contrary to Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).
462 42 Op. Atty. Gen. No. 36 (January 3, 1969).
This second part of the second clause elicited little discussion at the Convention and was universally understood to be a safeguard against executive influence on Members of Congress and the prevention of the corruption of the separation of powers.463 Congress has at various times confronted the issue in regard to seating or expelling persons who have or obtain office in another branch. Thus, it has determined that visitors to academies, regents, directors, and trustees of public institutions, and members of temporary commissions who receive no compensation as members are not officers within the constitutional inhibition.464 Government contractors and federal officers who resign before presenting their credentials may be seated as Members of Congress.465
One of the more recurrent problems which Congress has had with this clause is the compatibility of congressional office with service as an officer of some military organization—militia, reserves, and the like.466 Members have been unseated for accepting appointment to military office during their terms of congressional office,467 but there are apparently no instances in which a Member-elect has been excluded for this reason. Because of the difficulty of successfully claiming standing, the issue has never been a litigatible matter.468chanrobles-red
463 THE FEDERALIST, No. 76 (Hamilton) (J. Cooke ed. 1961), 514; 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §§ 866–869 (1833).
464 1 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 493 (1907); 6 CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 63–64 (1936).
465 Hinds’, supra §§ 496–499.
466 Cf. Right of a Representative in Congress To Hold Commission in National Guard, H. Rep. No. 885, 64th Congress, 1st sess. (1916).
467 Hinds’, supra §§ 486–492, 494; Cannon’s, supra §§ 60–62.
468 An effort to sustain standing was rebuffed in Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974).