July 11, 1979


79-51    MEMORANDUM OPINION FOR THE
         ATTORNEY GENERAL

         Constitutional Law—Article I, Section 6, Clause
         2—Appointment o f Member of Congress to a Civil
         Office


   This responds to the informal request of the Senate Judiciary Commit­
tee for the opinion of the Department of Justice regarding an unsigned
memorandum dated July 2, 1979, taking the position that Article I, Sec­
tion 6, Clause 2, of the Constitution bars Representative Abner Mikva
from appointment during the present Congress as a judge of the U.S.
Court of Appeals for the District of Columbia Circuit. That position rests
on untenable factual assumptions and on a constitutional analysis that, in
our opinion, is at odds with the plain language and settled interpretation
of Clause 2. The clause reads as follows:
     No Senator or Representative shall, during the Time for which he
     was elected, be appointed to any civil Office under the Authority
     o f 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.

                                    I.
   The memorandum argues that wisdom dictates that Representative
Mikva’s appointment as a judge be deferred beyond the expiration of his
current congressional term, which began in January 1979. Its core premise
is that “ existing law will operate to increase the compensation of circuit
judges during Representative Mikva’s present term of office.” However,
the premise—namely, that the compensation o f Federal judges must in
fact increase during the present Congress—is speculative.
   Federal appellate judges are compensated at rates determined under

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§ 225 of the Federal Salary Act of 1967, Pub. L. No. 90-206, 81 Stat. 643,
as amended, 2 U.S.C. §§ 351-361, and adjusted pursuant to the Executive
Salary Cost-of-Living Adjustment Act, Pub. L. No. 94-82, 89 Stat. 422,
28 U.S.C. § 461. Pursuant to § 205(a)(1) of the Executive Salary Cost-of-
Living Act, the salary rate of Federal judges is to be adjusted by a percent­
age of the salary rate equal to the overall percentage of adjustments made
in the rates of pay under the General Schedule. Adjustments in the rates of
pay under the General Schedule are governed by the Federal Pay Com­
parability Act of 1970, Pub. L. No. 91-656, 84 Stat. 1946, 5 U.S.C. § 5305
et seq. It provides that the President is to direct his agent to prepare an­
nually a report comparing rates of pay in the statutory pay system with
rates of pay for the same levels of work in the private sector, and recom­
mending appropriate adjustments of the former. After considering the
report and the findings of the Advisory Committee on Federal Pay, the
President is to adjust statutory rates of pay accordingly. That adjustment
becomes effective in October of the applicable year. Alternatively, the
President, in view of economic conditions affecting the general welfare,
may prepare and transmit to Congress before September 1 of each year an
alternative plan incorporating salary adjustments that he considers ap­
propriate. Such an alternative also becomes effective in October, and it is
to continue in effect unless, within a stated period, either House of Con­
gress adopts a resolution disapproving the alternative plan. If a disap­
proval resolution is adopted, the salary adjustments for the statutory pay
system recommended by the Advisory Committee on Federal Pay are to
become effective.
   A fundamental element of the foregoing statutory scheme is that salary
adjustments are triggered by action of the President, which for 1979 has
not yet occurred and will not necessarily occur under the statutory scheme
until September. Moreover, once a Presidential decision is transmitted to
Congress, it is possible that Congress will act to the contrary by legisla­
tion, as it has in the past, preventing upward salary adjustments. In short,
it is incorrect to assert that, at the present time, it is known as a fact that
the salary of Federal appellate judges will increase this year or, indeed,
during this Congress.

                                     n.
  Thus, the issue at this time is not whether Congressman Mikva may be
appointed to a judgeship the emoluments o f which have already been in­
creased, but rather whether he may be appointed to a judgeship as
to which the emoluments may be increased subsequent to his appoint­
ment. To hold that in the latter situation he is precluded from appoint­
ment, it would be necessary to construe Clause 2 as barring the appoint­
ment of a Member of the Congress to a civil office during the term for
which he has been elected before the emoluments of the office have been
increased. That interpretation is plainly at odds with the language o f the

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 constitutional provision itself, stating that no Member of Congress
 “ shall * * * be appointed” to a civil office the emoluments of which
 “shall have been increased” during the term for which the Member-was
 elected. [Emphasis added.] By using the future tense in referring to an ap­
 pointment, while employing the future perfect tense to refer to an increase
 in emoluments, the provision on its face plainly shows an intention of
 preventing an appointment only when an increase in the emoluments of an
 office precedes an appointment to that office.
    The importance of carefully construing the literal language of the con­
 stitutional provision is underscored in the opinion of Attorney General
 Ramsey Clark, 42 Op. A tt’y Gen. 381 (1969), which concluded that it did
 not disqualify Representative Laird from appointment as Secretary of
 Defense. The essential foundation of the Clark opinion was the language
 of the constitutional proscription, which, he held, “ clearly does not apply
 to an increase in compensation which is proposed subsequent to the ap­
 pointment.” Furthermore, he held that it did not apply where “ it is possi­
 ble but not certain at the time of the appointment that a proposed salary
 increase for the appointee may receive final approval at a future date.” 42
Op. A tt’y Gen., at 382. The reasoning, which is directly applicable to the
 present case, is as follows:
       It is my view that, notwithstanding submission of any salary in­
      crease recommendations in the Budget message, the salaries in
      question will not ‘have been increased’ within the meaning of the
      constitutional prohibition so long as Congress may still exercise
      its power of disapproval. Assuming that you [Representative
      Laird] are, in the normal practice * * * nominated, confirmed,
      and appointed as Secretary of Defense within a few days follow­
      ing the inauguration, i.e., during the period in which it remains
      uncertain whether Congress may disapprove the Presidential
      salary recommendations, I believe your appointment will not be
      precluded by this constitutional clause. [Id. at 382-83.]
Just as Attorney General Clark concluded that before an increase is cer­
tain an appointment is valid, so in the present circumstances, until such an
increase has become an accomplished fact, Representative Mikva’s ap­
pointment is permissible.
   The memorandum attempts to distinguish the Clark opinion on the
ground that the salary statute in effect at that time is different from the
present salary statute because under the current arrangement, some salary
adjustment will go into effect unless the Congress as a whole, as opposed
to one House alone, takes affirmative legislative action to prevent it. The
notion is that present law makes it somewhat more difficult for Congress
to prevent a salary increase. However, whatever else may be said about the
distinction, it is simply not germane to the reasoning of the Clark opinion.
The opinion, in summarizing the applicable statutory scheme, emphasized
that “ * * * it will be uncertain whether there will be any increase in
Cabinet salaries until March 1, or such earlier date as Congress may

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take definitive action manifesting that it will not disapprove such
increase.” [Emphasis added.] 42 Op. A tt’y Gen., at 382. The precise
nature of “ definitive action” by Congress was not an issue in the Clark
situation. Rather, the crucial point was the uncertainty of a salary increase
at the time of Mr. Laird’s appointment. Furthermore, nothing in the
language of the constitutional provision suggests that it operate only when
it may be relatively less difficult for. Congress to prevent an increase.
Rather, the critical point is whether there has been an “ appointment of a
legislator to an office the compensation of which ‘shall have been' in­
creased prior to the making of such appointment.” [Emphasis in original.]
42 Op. A tt’y Gen. at 381-82.
   The memorandum also asserts that the present case is covered by the
1882 opinion of Attorney General Brewster, 17 Op. A tt’y Gen. 365,
holding that a former member of Congress could not be appointed to an
office because of the proscription of Clause 2. However, the memoran­
dum neglects to note that the situation underlying the Brewster opinion is
fundamentally distinguishable from the present case. The Brewster
opinion involved a former Senator, whose term was to expire in March
1883; he resigned from the Senate in 1881 to accept appointment as
Secretary of the Interior, subsequently resigned from that position, re­
turned to private life, and was being considered for appointment to the of­
fice of tariff commissioner created by legislation enacted on May 15, 1882.
It is obvious that he could not have been appointed to the newly created
position until after it had in fact been created. Thus, as Attorney General
Clark stressed in his opinion in discussing the Brewster holding, it rested
on a crucial distinguishable factual foundation, and as such it “ has no
bearing on [the present] situation.” 42 Op. A tt’y Gen. at 383.1
   In short, the language and settled interpretation of Clause 2 establish
that Representative Mikva is not barred from appointment.

                                            m.
   It should be further noted that, contrary to the view expressed in the
memorandum, even if a salary increase for Federal judges generally were
to occur, Congress could, by legislation, exempt from coverage the office
to which Representative Mikva may be appointed. Such action was taken
in the past. In 1909 President Taft sought to appoint Senator Knox as
Secretary of State, although in the prior year the compensation for that


   1 Moreover, it should be noted that if the opposite interpretation were followed, and it
were held that a sitting Member o f Congress could not be appointed to an office the
emoluments o f which were increased after his appointm ent, then Congress, by enacting a
salary increase after the President had appointed him a Federal judge, would thereby retroac­
tively invalidate the appointm ent. This would, in effect, am ount to his removal and thus
would circumvent the constitutionally m andated process o f impeachm ent as the only existing
method for removing Federal judges.

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office had been increased. A bill was enacted reducing the salary of the of­
fice to the previous level in order to avoid the constitutional problem. See
43 C o n g r e s s i o n a l R e c o r d 2205, 2390-2403. The same action was taken
with respect to the appointment of Senator Saxbe to the office of Attorney
General. See Pub. L. No. 93-178, 87 Stat. 697 (Dec. 10, 1973). Accord­
ingly, even if a salary increase were to become effective prior to the ap­
pointment of Representative Mikva, which is not the situation presently
existing, he would not thereby be necessarily barred from appointment.

                                           J o h n M. H a r m o n
                                       Assistant Attorney General
                                                     Office o f Legal Counsel




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