Saxbe fix
To prevent ethical conflicts, James Madison proposed language at the Constitutional Convention that was adopted as the Ineligibility Clause after debate and modification by other Founding Fathers.
Madison wrote that corrupt legislative actions, in the form of the unnecessary creation of offices and the increase of salaries for personal benefit, were one of his greatest concerns.
[2] The delegates eliminated the prohibition on a member of Congress's assuming holding state office based on the rationale that there might be times when it might be in the best interest of the nation to allow such service.
[4] Madison moved that the phrase "or the Emoluments whereof shall have been augmented by the legislature of the United States, during the time they were members thereof, and for one year thereafter."
Article 1, Section 6, Clause 2 of the United States Constitution therefore prohibits self-dealing legislation and is intended to protect the "separation of power" of the various branches of government.
President George Washington attempted to appoint William Paterson to the Supreme Court on February 27, 1793, after the resignation of Associate Justice Thomas Johnson.
[17] Therefore, as in the Paterson matter a century earlier, Iowa Governor Samuel J. Kirkwood, who had resigned a Senate seat with a term that did not expire until March 1883, was ineligible for appointment to the position of United States Tariff Commissioner.
The repeal of the "salary grab" was motivated by reaction to public outrage rather than concerns about a member's eligibility for office, but Acting United States Attorney General Robert Bork would later cite the Morrill case in his opinion about the Saxbe appointment.
[20][23] Members of Congress considered reverting the fix after the appointed nominee had resigned and assumed the post so that Knox would not have to forgo any emoluments.
[20] At the suggestion of the Senate Judiciary Committee, Congress passed a bill reducing only the Secretary of State's salary to the level it had been at before Knox's term began, believing this would cure the problem.
The rollback device gained its name when President Richard Nixon sought to appoint Senator William Saxbe as Attorney General following the Saturday Night Massacre.
[32] Saxbe was chosen in large part because, despite the confrontations of the ongoing Watergate scandal, Nixon felt the Senate would want to confirm one of their own.
[44] Senator Robert C. Byrd, who felt the bar was not avoidable by legislation,[36] explained his position at the time: "[The Clause is] so clear that it can't be waived.
Saxbe later wrote that although he needed the additional salary he lost (he was earning $42,500 per year as a senator), he was still willing to serve as Attorney General and would get by financially.
[37] Subsequently, Jimmy Carter became the first Democratic president to use a Saxbe fix when he appointed Senator Edmund Muskie as his Secretary of State.
[49] Upon the retirement of Supreme Court Justice Lewis F. Powell, Jr. in 1987, President Ronald Reagan considered appointing Senator Orrin Hatch to fill his seat.
[52] Two months later, Assistant Attorney General Charles J. Cooper rejected the Saxbe fix in a written opinion, concluding that it did not resolve the Ineligibility Clause issue.
[60] Without a Saxbe fix, Clinton would have been ineligible to serve in the Cabinet until the conclusion of the 112th United States Congress in January 2013, near the end of Obama's elected term.
[61] The conservative advocacy group Judicial Watch announced after the nomination that it believed a Saxbe fix was unconstitutional and that Clinton could not become Secretary of State until 2013 at the earliest.
[71] The bill was sponsored by Senate Majority Leader Harry Reid, was introduced on January 6, 2009, and became the first public law enacted by the 111th Congress (Pub.
[61][71] 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.
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.
[76] 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 [or would be] currently serving".
[77] 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.
[80] According to conservative constitutional law attorney Bruce Fein, "The so-called fix fits the purpose of the clause like a glove.
"[81] If the Saxbe fix is a solution for the primary problem of self-dealing, a relevant fact is that Congress has not voted to increase any Cabinet salary or benefits since the 1990s, when it granted that power to the president in the form of an across-the-board cost of living adjustment by executive order.
[82] Because to textualism advocates the language of the rule is an absolute prohibition, law professor and textualist Michael Paulsen has said, a "'fix' can rescind the salary, ... but it cannot repeal historical events.
[80] Another argument presented during the Saxbe nomination hearings was that the constitutional framers wrote the Ineligibility Clause to prevent Congress from enacting laws to benefit one of its own members.
[86] Once Congress approves a salary reduction and the nominee is confirmed, legal experts conclude that in practice it is unlikely that an appointment would be successfully challenged in the courts.
The courts have dismissed suits contesting the appointments of Justice Hugo Black (Ex parte Levitt, 302 U.S. 633 (1937)) and Judge Abner Mikva (McClure v. Carter, 454 U.S. 1025 (1981)).
