## Why is Jeff Sessions eligible to become Attorney General?

41

1

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 encreased 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. (Constitution Article I, §6, para 2)

My interpretation of this is that a senator, once elected for a six-year term, cannot be appointed to an Executive Branch office during that period, if the office was created or its salary increased since the Senator took office. The obvious rationale for this would be to prevent congressmen creating lavish appointments for themselves and then transferring into them.

The Attorney General is a Level I position; the salary for which (along with those of what looks like most/all of the Executive Branch) was increased to \$205,000 in January 2016. A similar increase also took place in January 2015; I presume it's an annual occurrence.

Sessions began his Senate term in January 2014, and it extends until 2020. Why is he, as a sitting senator, allowed to take up the AG office prior to 2020?

4Sitting Congress critters resign their seat to accept a cabinet position. The wording seems to imply that they are ineligible for six years after becoming a Senator. But I'm going to go out on a limb and suggest that since this is routinely done, there must be an official interpretation that resigning their seat complies with the law. – None – 2017-02-08T14:18:13.637

1I understand that they have to resign their congressional seat in order to take up the office, per the last clause "and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office". I'm more interested in the six-year thing. – Stephen – 2017-02-08T14:26:58.853

17Senators being moved up to cabinet posts is actually pretty common. Obvious recent examples are Clinton and Kerry, who were both Senators before becoming Sec of State – David says Reinstate Monica – 2017-02-08T14:44:59.443

That just means they can't do both jobs at the same time. – Matthew Whited – 2017-02-09T15:09:50.890

1@MatthewWhited: The wording of this particular paragraph seems to be interested in a lot more than that, as the OP points out. – Lightness Races in Orbit – 2017-02-09T15:12:21.333

"for which he was elected" ... if one were to quit they would no longer be elected for that position. – Matthew Whited – 2017-02-09T15:14:33.993

@MatthewWhited "The time for which he was elected" = the entire term to which they were elected, regardless of whether they serve all of it or not. If merely resigning were sufficient, the whole emoluments clause would be moot because the last clause of that paragraph says that they have to resign their seat in Congress in order to take the job anyway. – reirab – 2017-02-09T15:41:28.373

Nothing in the world works that way. And in the US terms as you are describing would violated the right to freely associate. – Matthew Whited – 2017-02-09T15:42:53.467

@MatthewWhited There is no 'right' to do anything that is explicitly banned by the Constitution. Note that the wording is "the time for which he was elected," not the "the time he is in office." Members of Congress are elected for a duration set by the Constitution, regardless of whether they serve out the entire term or not. The emoluments clause here very clearly refers to that entire term, otherwise, as I mentioned previously, it would be completely moot because the next clause bans people in those positions from retaining seats in Congress anyway. – reirab – 2017-02-09T19:51:06.547

http://www.steptoe.com/assets/attachments/3658.PDF – Matthew Whited – 2017-02-09T20:25:06.407

BTW, seeing that Article 1 covers congress the most this would possibly mean is that someone couldn't get into congress (which is has) if they had a job in the executive branch. It has no affect (implicit or explicit) on someone leaving congress. – Matthew Whited – 2017-02-09T20:28:57.463

In other words Sessions could not become a Senator (take oath) if he was US-AG but this means nothing if he wants to quit the senate to become AG. – Matthew Whited – 2017-02-09T20:31:01.290

@reirab - yeah, probably, but since Congress usually exempts themselves from laws, they probably got an interpretation/legal opinion that it means that "the time for which He was elected" equals the time while serving in that capacity, which ends with resignation. Probably intended to avoid any kind of double-dipping from the public treasury, overall. In any case, it would be difficult to find someone with standing who would be interested in challenging that opinion/interpretation, so there it stands. – PoloHoleSet – 2017-06-13T22:18:36.817

@reirab - that's more about the specific conflict about compensation, not the language of "current term," though. I stated in my comment that the original restriction seemed like it was created to prevent double-dipping, as a goal, more than other considerations. I realize I probably muddied the discussion with that aside. – PoloHoleSet – 2017-06-15T20:31:26.733

@PoloHoleSet There's another clause that prevents double-dipping. You're not allowed to serve in both positions simultaneously. The compensation clause is there to make sure you don't vote for a big pay increase in a position and then take that position. – reirab – 2017-06-15T20:40:42.493

## Answers

51

Your reading is more or less correct. However, you didn't know that the Senate and House will simply pass the "the Saxbe" fix.

In the past, Congress has gotten around this by passing a resolution cutting the salary for the office at stake back to what it was before the nominee’s most recent election.

This became known as the “Saxbe fix,” after it was used to facilitate President Richard M. Nixon’s appointment of Senator William Saxbe of Ohio as attorney general. It happened most recently 16 years ago when incoming President Bill Clinton made Senator Lloyd Bentsen of Texas his treasury secretary.

When the Saxbe fix was used for Hillary Clinton, who had the same problem, there was some debate over whether it would be valid, due to the timing of when the raise by the Executive Branch took effect compared to exactly when Clinton resigned from the Senate and when her term of service began at the State Dept. The Constitutionality has nothing whatsoever to do with Clinton's personal actions and these particulars would hold for others too if the timing was similar.

To sum up, Congress may be applying a workaround that's sort of bogus, but the precedent has been set and they are sticking to it rather than passing legislation that would clarify alternative interpretations of the emoluments clause.

9Interesting how nobody thought it was a problem for 3 decades until Clinton tried to do it. – T.E.D. – 2017-02-08T20:22:42.930

3@T.E.D. No it happens all the time. – K Dog – 2017-02-08T20:32:13.350

8@KDog Then why did you single out Clinton specifically? – Philipp – 2017-02-08T20:53:08.810

1@Philipp because there were some particulars of the Clinton case, that the article linked to don't do a great job of distinguishing btw so it is hard to see if they apply generally or not, that arguments are that the Saxbe fix shouldn't be used given the ambiguity of the point of time definition. Maybe they apply to Sessions too, making this fix less definitive. – K Dog – 2017-02-08T21:05:13.373

6@Philipp In other words, the Congress may be applying a workaround that's sort of bogus, but the precedent has been set and they are sticking to it. – K Dog – 2017-02-08T21:09:47.580

1@KDog - If the article doesn't do a great job of explaining why Clinton's nomination was different than any other, then please either find a better article to explain it or don't single her out. Conversely, if it's only ever been applied to Saxbe, Bentsen, Clinton, and (presumably) Sessions, then rewriting it to indicate that this is a rarely-used and questionable-but-precedented workaround which was used for her is entirely reasonable. – Bobson – 2017-02-09T17:20:12.880

@Bobson See clarification. Wanted to keep Volokh in the mix on this as he is the number one authority, and a genius to boot, on this particular issue. – K Dog – 2017-02-09T17:26:49.263

@KDog - Thanks, that helped explain it better. I took the addition and reworded it a bit to make it a cohesive whole. I think it's nice and clear now. (Or at least as clear as any murky congressional workaround gets.) – Bobson – 2017-02-09T17:31:07.593

"Why Clinton specifically?" - while KDog and I almost always disagree with stuff philosophically, I don't see any agenda in choosing a recent, well-known example for relevance. – PoloHoleSet – 2017-06-13T22:20:53.127

Isn't it sufficient for the Senator to simply resign and become an ordinary citizen before the appointment? Why is the Saxbe fix necessary? – JonathanReez – 2017-08-25T15:38:34.390

10

My interpretation of this is that a senator, once elected for a six-year term, cannot be appointed to an Executive Branch office during that period,

Your reading is correct.

But that doesn't prevent Sessions, or any Senator for that matter, from resigning his/her seats before s/he takes on the new job.

Which countless other politicians (e.g. Clinton and Kerry)from both parties have done, with no objection as to their eligibility.

1Will Sessions' salary be less than that of his fellow cabinet members who were not previously senators? – DJohnM – 2017-02-08T14:45:32.230

11@dannyf It is nice that you finally start to add links to your answers, but please try to find links which actually support your claims. Instead of just linking to the Wikipedia articles of the persons involved, please at least link to the subsection of the article which is relevant to your answer. When there is no appropriate subsection, then the link might not actually be relevant to back up the claims in your answer. – Philipp – 2017-02-08T16:01:38.703

5@Philipp It looks like the links were added by a different user, based on the edit history. – IllusiveBrian – 2017-02-08T16:13:09.223

1@Philipp Yep, that was me. Was trying to show they both have Senator and Sec of State on their resume – David says Reinstate Monica – 2017-02-08T22:28:39.237

4

Regarding the pay increase, the increases from 2015 and 2016 were both Executive Orders based on the links you provided, not acts of Congress. The bills creating the various agencies presumably give the President the authority to make cost of living adjustments to the salary of the position, but regardless unless the Attorney General position's salary was changed by Congress since he took office, he has never voted on the position's "Emoluments."

7Voting is not a criteria for the emolument clause. -1 – K Dog – 2017-02-08T15:15:58.357

0

Other answers are missing an important part of the sentence structure.

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.

Because the office of the Atty General was not CREATED during the Time for which he was elected he is eligible.

If President Trump with the Congress CREATED a NEW cabinet post (Secretary of Funny Walks) no sitting member of Congress would be eligible for that post, until their present term had expired.

2Created or had its emoulements (i.e. salary) increased. It doesn't just cover new offices. – cpast – 2017-02-09T20:04:00.067

@cpast The emoluments clause was adequately covered above with the reference to the Saxbe fix. Others still referenced the fact that they must resign before taking office (can't to both at once). But in the subsequent comments OP says ...I'm more interested in the six-year thing along with other comments led me to believe that clarifying the "Created" clause was a positive contribution to the question at hand. – Cos Callis – 2017-02-09T21:08:19.527

in that, you were wrong. – hobbs – 2017-02-10T07:45:21.953