Can the Senate Constitutionally Refuse to Seat Roland Burris?

            This article from ABC News highlights an issue I noted several weeks ago when it questions whether the Senate actually has the power to refuse to seat Roland Burris as a Senator from Illinois.  The Senate has (or at least has previously asserted) the power to refuse to seat an appointee if it finds that the appointment was the result of fraud or corruption.  In this case, however, the Senate evidently has no basis for such a finding.  As Jan Baran notes, the Senate could claim that there needs to be an investigation before seating Burris, and thereby stall things for awhile.  But in the absence of any evidence that Burris obtained the appointment through fraud or corruption, this would be a constitutionally questionable act. 

            Conceivably, Burris could challenge the Senate’s refusal to seat him through a lawsuit against the Senate officer responsible for paying him (as was done in Powell v. McCormack).  This case would be distinguishable from Powell because the latter involved the power to judge a Member’s qualifications, whereas the Burris case would involve the power to judge a Member’s “election.”  But it is far from clear that the use of the election-judging power to exclude an appointee would be exempt from judicial review, particularly in circumstances where there was no prima facie evidence that the appointment was invalid.

Is Emanuel Delaying his Resignation so that His Staff Can Find New Jobs?

          The Hill had a report yesterday regarding the “two hats” worn by Rahm Emanuel, namely (1) his presidential transition job in which he “is calling the shots for what will soon be the Obama White House” and (2) his job as a Member of Congress.  The first job is unpaid, although is evidently occupies most or all of his time; the second job is paid, although he is no longer performing it.  

            The story quotes an Emanuel spokeswoman as saying that the timing of his resignation has not been decided.  According to a source in another leadership office, “the understanding is that Emanuel has delayed resigning his House seat in order to allow his staff to look for jobs and keep getting salary and benefits.” 

            This is a peculiar explanation.  Under House rules and federal law, once a Representative resigns his seat, the Clerk of the House supervises the staff and manages the vacant office, and the staff remains on the payroll at the same salary (see 2 U.S.C. §92b).  Thus, it is not like Emanuel’s resignation would leave the staff immediately unemployed.


            It is true that once a special election occurs, many or all of the Emanuel staffers may be out of a job.  But even if Emanuel had resigned immediately, it is unlikely that a special election would have been held until early 2009.  For example, when Speaker Hastert (who was the Representative from Illinois who most recently vacated his seat) resigned on November 26, 2007, the special election to replace him was not until March 2008.  This would surely give the staff enough time to find other employment. 

            In short, it seems unlikely that Emanuel’s resignation timing is being driven by his staff’s need to find other employment.

The Emoluments Clause and the “Saxbe Fix”

          The Emoluments Clause of the Constitution, art. I, § 6, cl. 2, provides that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office . . . the Emoluments whereof shall have been encreased during such time.”  In plain English, this means that if Senator X is elected in 2006 for a term to run from 2007-2013, and the salary or benefits for a federal office are increased during that term (say in 2008), he or she cannot thereafter (say in 2009) be appointed to that office until the expiration of the term (i.e., in January 2013). 

            From time to time, however, it transpires that a President would like to appoint to federal office a Senator or Representative who, on the face of it, would appear to be disqualified from appointment under the Emoluments Clause.  Naturally, in such situations the President, having taken a solemn oath to protect and defend the Constitution, will regretfully select another well-qualified nominee for the position. 

            Just kidding.  What most presidents have done in that situation is to employ something called the “Saxbe fix,” so-called after Senator William Saxbe, who was appointed by President Nixon as Attorney General in 1973.  The Saxbe fix is legislation that repeals the pay raise (or other benefit increase) for the office in question so that the appointee will receive the same emoluments as the office provided at the beginning of his or her congressional term.  This roll-back provision, it is argued, satisfies the literal requirement of the Emoluments Clause because the emoluments are now the same as they were at the beginning of the time for which the appointee was elected and thus have not, in a sense, increased. 

            Certainly there are contexts in which this construction of the term “increased” would be perfectly reasonable.  For example, if one were asked if the stock of IBM increased today, one would reasonably construe the question to mean whether the closing price was higher than the opening price, rather than whether the price rose at any point during the day (to which the answer would certainly be yes). 

            Yet there are other contexts in which this construction seems unreasonable.  For example, Article II (section 1, clause 7) of the Constitution provides that the President shall receive “a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected.”  Surely this provision would be violated if the President’s compensation were both increased and decreased during his term, even though the compensation rate at the beginning and end were identical. 

            One might say that the presidential compensation clause is ambiguous but must be read in light of its purpose (presumably to prevent manipulation of the president’s compensation for political purposes).  Yet this does not seem quite right.  Even without knowing the specific rationale behind the clause, it is reasonably apparent that it does not permit a series of increases and decreases that cancel each other out.  For one thing, if the Framers had so intended, they could have simply provided that the compensation at the commencement of the period for which the president was elected would be identical to the compensation at the conclusion of such period.  Thus, the presidential compensation clause unambiguously prohibits offsetting increases and decreases.


The Emoluments Clause presents a similar structural issue. If the Framers had intended merely to ensure that the emoluments of the executive office in question were no greater at the time of appointment than they were at the time of commencement of the appointed Member’s term, the Clause could have, for example, stated “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office . . . the Emoluments whereof shall have been encreased during such time unless said Emoluments shall subsequently have been decreased by at least an equivalent amount.”

The hypothetical language above was suggested by Professor Larry Tribe, a supporter of the Saxbe fix, who acknowledges that the absence of such an “escape clause” in the Constitution poses some difficulties for his position. Professor Tribe writes that “[s]omewhat troublesome for [supporting the constitutionality of the Saxbe fix] is the absence of any constitutional proviso for annulling what would otherwise be a violation of the Emoluments Clause by decreasing a salary hike at some later time.” In contrast, Tribe notes, the constitutional prohibition on accepting gifts or emoluments from foreign states “includes within its text [an] escape clause” allowing Congress to give its consent to the gift or prohibition. However, Tribe argues that this constitutional silence is of limited significance to the Emoluments Clause because the wording of the needed escape clause would be “singularly peculiar.”

However, if the Framers were concerned merely about the possibility that a Member might benefit (or expect to benefit) from a pay raise enacted during his congressional term, the most direct and intuitive way to address the problem would be simply to prohibit the Senator or Representative from receiving the increase. The Clause would thus read something like this: “No Senator or Representative who shall, during the Time for which he was elected, be appointed to any Civil Office . . . shall receive any encrease in Emoluments which have happened during such Time.”

There is nothing “peculiar” about such a direct prohibition on receipt of a financial benefit. Indeed, when the Framers wanted to place direct limitations on compensation or emoluments, they were well aware of how to do so. The presidential compensation clause is one example. Another is the 27th Amendment (which, while not ratified until 1992, was proposed in 1789). This amendment provides that “[n]o law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” The fact that the Emoluments Clause is structured as a disability or disqualification to office, rather than simply a limitation on the emoluments that a Member can receive, hardly seems likely to be the result of mere inadvertence

Of course, no one can say for sure whether the Framers considered or even thought of the idea of structuring the Emoluments Clause in a way that would explicitly permit a Member to be appointed despite a prior increase in emoluments. One can say with a fair degree of certainty, however, that such an alternative structure would have been vigorously objected to by at least a significant number of those who debated, drafted and ratified the Constitution.

The initial proposal at the Constitutional Convention was to prohibit Members of Congress from being appointed to any civil offices during the time for which they were elected (and for a one-year period thereafter). This provision was supported by anti-Federalists such as George Mason and Elbridge Gerry on the theory that the prospect of such appointments would cause Members of Congress to become more oriented toward expanding the scope and power of the federal government, and less toward protecting the interests of their states. These delegates were particularly, but not exclusively, concerned with the possibility that the executive would use the power of appointment to corrupt Members of Congress.

Other delegates, such as James Madison, believed that the costs of a total prohibition on appointment of Members outweighed the benefits. Madison acknowledged that allowing such appointments had the potential for conflict of interest and exercise of undue influence by the executive, but felt that these concerns were not sufficient to justify a total ban on appointments, which he believed would be a disincentive to service in the federal legislature. Instead, he proposed a compromise to bar appointments only for offices that had been created or for which the emoluments had been increased during the time for which the member in question had been elected. Madison argued that the “unnecessary creation of offices, and increase of salaries, were the evils most experienced & if the door was shut agst. them, it might properly be left open for the appointt. of members to other offices as an encouragmt. to the Legislative service.” Although some anti-Federalists thought Madison’s proposal did not go far enough to prevent corruption, the Convention adopted his amendment.

As John F. O’Connor demonstrates in his article, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, the fact that the Emoluments Clause is a disability to appointment, rather than a mere prohibition on increased emoluments, better serves the Anti-Federalist purpose of minimizing the growth of government. This is because a disability tends to encourage Members of Congress (to the extent that they hope to be appointed to federal offices) to vote against any pay raise, while a mere prohibition on receiving increased emoluments does not. The structure of the Clause as a disability, rather than a limitation on compensation, therefore must be viewed as integral to the compromise that was struck, rather than as simple inadvertence or peculiarity or phrasing.

For this reason the Emoluments Clause cannot be circumvented by means of the Saxbe fix. While in hindsight it may be apparent that the Clause has not been an effective tool for limiting the size and cost of the federal government, the appropriate “fix” for this problem is to repeal the Clause (or, better yet, to substitute more effective constitutional limitations on the growth of government). It is not justification for ignoring the Clause’s express dictates.

Can Joe Biden Be Vice President and Senator at the Same Time?


            ABC News asks “Why Hasn’t Joe Biden Resigned His Senate Seat?”  Perhaps the answer is that Senator Biden, who is after all a law professor in his spare time, is familiar with this recent work of legal scholarship concluding that one can be President (or Vice-President) at the same time one holds a seat in the Senate (or House).  Specifically, Seth Barrett Tillman argues that the Incompatible Offices Clause (U.S. Const., art. I, § 7, cl. 2), which provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office,” is inapplicable to the President or Vice-President because they do not hold offices “under the United States.”  Although Tillman’s argument is focused on the presidency, it would seem to allow Biden to remain a Senator while serving as Vice-President.   

            There are a number of very strong arguments against Tillman’s theory, of which unbroken historical practice is just one.  Professor Steven Calabresi lays out many of these arguments in a recent debate with Tillman.  One particular problem for a Vice President/Senator would be Article I, § 3, cl. 4, which provides that the “Vice President shall be President of the Senate, but shall have no Vote, unless they be equally divided.”  Does this mean that Vice President Biden would be unable to vote in his capacity as Senator Biden? 

            Nonetheless, perhaps Senator Biden wants to chew on this awhile before making a final decision on whether to give up his Senate seat.  After all, Senator Obama rushed into his resignation and look how much trouble that caused . . . .

Rahm Emanuel’s Resignation Calculus


           While most of America is worrying about losing a job, there is at least one person who has to worry about having too many.  That would be Rahm Emanuel, who currently holds at least three different titles and responsibilities.  He is a Member of the 110th Congress, representing the 5th Congressional District of Illinois.  He is a Member-Elect of the 111th Congress, having been re-elected in November to that seat.  He is President-elect Obama’s designee for White House Chief of Staff, a position he will formally assume sometime after January 20, 2009.  In the meantime, Emanuel presumably has significant responsibilities for the presidential transition.  

            Emanuel cannot serve as WH Chief of Staff and be a Member of Congress at the same time due to the Incompatible Offices Clause of the Constitution, which provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”  This clause was designed, according to Federalist No. 76, to protect against “the danger of executive influence upon the legislative body.”   

To comply with the Incompatible Offices Clause, Emanuel will have to resign his seat in Congress before assuming the office of COS.  For purposes of this discussion, we will assume that there is nothing constitutionally, legally or ethically problematic with regard to the de facto authority that Emanuel exercises in the presidential transition (while at the same time serving in Congress). On that assumption, there is no particular obligation on Emanuel’s part to resign prior to January 20.   Instead, his decision on when to resign is presumably based on political and personal factors.

Emanuel’s replacement will be chosen in accordance with the House Vacancies Clause of the Constitution, which provides that “[w]hen vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.” Unlike Senate vacancies, which may filled temporarily by the Governor’s appointment, House vacancies can only be filled by special election. Article 25-7 of the Illinois Election Code provides that “[w]hen any vacancy shall occur in the office of representative in congress from this state more than 180 days before the next general election, the Governor shall issue a writ of election within 5 days after the occurrence of that vacancy to the county clerks of the several counties in the district where the vacancy exists, appointing a day within 115 days to hold a special election to fill such vacancy.”

Emanuel has not and probably will not resign his seat in the 110th Congress. This is understandable because it would have been virtually impossible for Illinois to hold a special election to fill his seat within the time remaining in the 110th Congress. Retaining his seat, in addition to allowing him to collect his congressional salary and use his congressional office and staff, permits Emanuel to continue to represent the people of his district during the remainder of the Congress. Given the extended lame duck session and the significant legislative issues that are still before the Congress, this decision makes perfect sense.

On the other hand, it is more puzzling as to why Emanuel has not yet resigned his seat in the 111th Congress. House precedents allow a Member-elect to resign his seat prior to start of the Congress for which he was elected. Thus, Emanuel could have resigned immediately upon deciding to take the COS position. He also could have resigned effective at a future date, e.g., January 20, 2009. Whether or not to treat these resignations as creating an immediate vacancy for purposes of the Illinois election code would have been an issue of Illinois law, and would have been a question for Governor Blagojevich to resolve. It is difficult to see, however, why Emanuel would delay his resignation unless he had some reason for postponing or, alternatively, for retaining control over the date of the special election.

Of course, this calculus changed when Governor Blagojevich was charged by federal authorities with various felonies, including allegedly attempting to sell Illinois’s vacant Senate seat. Now Emanuel presumably does not want the Governor to be issuing a writ of election for his seat if it can be avoided. Apart from the poor atmospherics of having the Governor involved in filling a congressional vacancy, Emanuel may be concerned that the Governor could manipulate the process by, for example, declaring the special election within an unreasonably short time.

As long as Blagojevich remains Governor, Emanuel has a conundrum. He could take the oath of office for the 111th Congress on January 6, and hope that Blagojevich is removed from the Governorship by January 20. Alternatively, he could not take the oath of office on January 6, but argue that the House should not consider the seat to be vacant due to the extraordinary circumstances presented. (He could then act as COS and yet continue to delay the special election indefinitely). This would be a somewhat far-fetched position, though no more so than the Illinois Attorney General’s attempt to have the courts declare the Governor incapable of carrying out his duties because of his legal troubles.

If, on the other hand, Blagojevich resigns in the next few days, one would expect that Emanuel would resign from the 111th Congress immediately thereafter, so as to allow the new Governor to call a special election and to ensure that the people of the 5th Congressional District of Illinois are without representation for as little time as possible.

A Seventeenth Amendment Problem in Illinois

           Today’s events in Illinois raise some really interesting questions under the Seventeenth Amendment.  This amendment established popular election of Senators (who previously were elected by state legislatures) and made the following provision for filling of vacancies: 

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. 

Acting pursuant to this authority, the Illinois legislature has provided that “[w]hen a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.” 

            Thus, when Barack Obama resigned his Senate seat in November (having decided to pursue other opportunities), the Governor of Illinois was empowered to make a temporary appointment until the general election of 2010.  Unfortunately, it appears that Governor Blagojevich may have decided to sell the vacant seat to the highest bidder, something frowned upon by Patrick Fitzgerald, U.S. Attorney for the Northern District of Illinois and notorious goody two-shoes. 

            Anyway, the Illinois legislature now intends to meet next week to pass a bill providing for a special election to fill the vacancy.  Presumably, this law will also take away the Governor’s authority to make temporary appointments.  If the law were to pass before the Governor took any action on the vacancy, I would guess that it would be effective.  After all, nothing in the Seventeenth Amendment would seem to prohibit a legislature from exercising its authority after a vacancy has occurred. 

            On the other hand, if Blagojevich were to make a temporary appointment before a new law is passed, the appointment would be valid, and it seems unlikely that anything in the new law could undo the appointment.  State legislatures do not have the authority to recall or remove U.S. Senators.  It is conceivable that the Senate could refuse to seat Blagojevich’s appointment, but it is not apparent that it would have a legitimate constitutional basis to do so.  Assuming that the Senate’s authority to judge elections extends to judging appointments, it could reject the appointed Senator only if the appointment itself were tainted by fraud or corruption.  The fact that Blagojevich himself is (allegedly) a crook would not be enough.  (Were Blagojevich to appoint himself, however, the Senate would have an arguable basis for refusing to seat him, and could certainly proceed against him under the Disciplinary Clause.) 

            The more difficult question is whether the Illinois legislature could shorten the term of the appointed Senator by moving up the time of the election.  On its face, the text of the Seventeenth Amendment does not prohibit this.  But one could argue that the Seventeenth Amendment provides for a temporary appointment to serve for a specific period identified by the legislature, and that once the appointment is made the Senator has a vested right to serve for that period.  Otherwise, the legislature would retain a power over the appointed Senator, and could shorten the term if it disapproved of his or her service.  As far as I know, this would be a question of first impression. 

            Finally, it should be noted that Blagojevich retains a significant amount of power with regard to any legislative attempt to amend the law.  Although the Seventeenth Amendment gives the legislature power with regard to filling vacancies, it is established that this power does not displace the role that may be played by the state executive in enacting legislation.  Thus, any new law must be presented to the Governor, as required by the Illinois Constitution, who may consider it for up to 60 days before deciding whether or not to veto it.  In short, unless Blagojevich decides to heed calls for his resignation, this could go on for awhile.