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Statutory Rollback of Salary to Permit Appointment of 

Member of Congress to Executive Office

Where a salary increase for an office would otherwise create a bar to appointment of a 

member of Congress under the Ineligibility Clause, compliance with the Clause can be 

achieved by legislation rolling back the salary of the executive office before the appointment.

May 20, 2009

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

We recently have reconsidered the question whether legislation to roll 

back a salary increase for an executive office can ensure compliance with 

the Ineligibility Clause of the Constitution if such a rollback occurs before 

a Senator or Representative is appointed to the office. The Ineligibility 

Clause provides that “[n]o 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.” U.S. 

Const. art. I, § 6, cl. 2. Rollback legislation lowers the salary of an office 

to the level at which it stood before Congress enacted the increase that 

would otherwise prohibit the appointment of a Senator or Representative.

A 1987 opinion of this Office took the position that such a law, if passed 

before the nomination1 of a Senator or Representative to an office, would 

not achieve compliance with the Ineligibility Clause. See Memorandum 

for the Counselor to the Attorney General, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, Re: Ineligibility of Sitting 

Congressman to Assume a Vacancy on the Supreme Court (Aug. 24, 

1987) (“Cooper Memorandum”). That opinion was not in accord with the 

prior interpretations of this Clause by the Department of Justice and has 

not consistently guided subsequent practice of the Executive Branch. For 

 1 President Washington withdrew the nomination of William Patterson to the Supreme 

Court in 1793 when it appeared Patterson’s appointment would violate the Ineligibility 

Clause. 32 The Writings of George Washington 362 (John C. Fitzpatrick ed., 1939). The 

Patterson episode established a practice of Presidents not making nominations unless and 

until any Ineligibility Clause restrictions are eliminated. See Office of the Attorney 

General: Hearing on S. 2673 Before the S. Comm. on Post Office and Civil Service, 93d 

Cong. 9 (1973) (statement of Robert H. Bork, Acting Attorney General of the United 

States) (“Bork Statement”); Appointment to Civil Office, 17 Op. Att’y Gen. 522 (1883).
33 Op. O.L.C. 201 (2009)

202

the reasons set forth below, we do not believe it reflects the best reading 

of the Ineligibility Clause.

I.

The Ineligibility Clause prohibits the appointment of a Senator or Representative to an “Office . . . which shall have been created, or the Emoluments whereof shall have been encreased” during “the Time for which 

[the appointee] was elected [to the Congress].” U.S. Const. art. I, § 6, 

cl. 2. As a linguistic matter, the words of the Clause suggest two possible 

interpretations of the phrase “shall have been encreased.” Under the first

interpretation, “shall have been encreased” means “shall have ever been 

encreased.” The Clause thus would call for a series of “snapshots”: if at 

any time during the term of a member of Congress the emoluments of an 

office are higher than at another time, the emoluments have “encreased” 

during the member’s congressional term, and therefore the member may 

not be appointed to that office. Under this interpretation, even if a salary 

is rolled back before the appointment, it still has been “encreased” within 

the meaning of the Clause. The alternative interpretation is to read “shall 

have been encreased during such time” as “shall have been encreased on 

net during such time,” thereby prohibiting the appointment of a congressional member to an office only when the emoluments of the office are 

greater at the time of appointment than they were at the start of the member’s term.

There is a long history of Executive Branch consideration of which of 

these interpretations is better, and the Executive Branch has not yet come 

to rest on a conclusion. For the most part, however, the Executive 

Branch’s interpretations have supported the effectiveness of statutory 

rollbacks to comply with the Ineligibility Clause, and thus they have 

adopted, at least implicitly, the “on net” interpretation.

When Congress was considering a bill to roll back the Secretary of 

State’s salary in 1909 in order to permit the appointment of Senator Philander C. Knox, Assistant Attorney General Charles W. Russell gave an 

“unofficial opinion,” published in the Congressional Record, that “the 

purpose, and the sole purpose of [the Ineligibility Clause] was to destroy 

the expectation a Representative or Senator might have that he would 

enjoy the newly created office or the newly created emoluments,” and that 

if a salary increase “is made and then unmade, he can not get, or hope for, 
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anything more than if there had been no such increase.” 43 Cong. Rec. 

2402, 2403 (1909) (citations omitted). Russell thus concluded that passage of the bill would permit the appointment to be made.

In 1973, Robert H. Bork, the Acting Attorney General, and Robert G. 

Dixon, the Assistant Attorney General for the Office of Legal Counsel, 

testified in favor of a rollback of the Attorney General’s salary that was 

intended to permit the appointment of Senator William B. Saxbe as Attorney General, the salary for which office had been increased during the 

Senator’s term in Congress. Acting Attorney General Bork stated that the 

rollback legislation “should remove any constitutional question which 

may be raised concerning the appointment of Senator Saxbe to be Attorney General of the United States.” Office of the Attorney General: Hearing on S. 2673 Before the S. Comm. on Post Office and Civil Service, 93d 

Cong. 11 (1973) (statement of Robert H. Bork, Acting Attorney General 

of the United States) (“Bork Statement”). He reasoned that, with regard to 

the Ineligibility Clause, “the rationale of the constitutional provision 

[would be] met because the expectation of a higher salary cannot influence Senators’ or Representatives’ votes on legislation to raise salaries

. . . if a Senator or Representative knows . . . that should he ever be nominated for [an office with a raised salary] during his term of office, he will 

have to accept the lower salary.” Id. Assistant Attorney General Dixon 

made a similar argument. To Reduce the Compensation of the Office of 

Attorney General: Hearing on S. 2673 Before the S. Comm. on the Judiciary, 93rd Cong. 71, 75 (1973) (statement of Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel) (“Dixon Statement”) 

(“[The proposed rollback legislation] would overcome the . . . evil regarding emoluments by preventing Senator Saxbe from obtaining the benefit 

of the 1969 salary increase . . . without wastefully barring him from 

offering his services to the country in an appointive office.”).

In 1979, our Office again took this position. Although we concluded 

that the Ineligibility Clause did not apply where a salary increase might 

take place after Representative Abner Mikva’s appointment to the Court 

of Appeals, we noted that “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.”

Appointment of a Member of Congress as a Judge of the U.S. Court of 

Appeals for the District of Columbia Circuit, 3 Op. O.L.C. 286, 289 

(1979) (“Mikva I”); accord Appointment of Member of Congress as a 
33 Op. O.L.C. 201 (2009)

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Judge of the U.S. Court of Appeals for the District of Columbia Circuit 

(II), 3 Op. O.L.C. 298 (1979). We cited the examples of Philander Knox 

and William Saxbe. Mikva I, 3 Op. O.L.C. at 289–90.

In addition to those public statements endorsing the constitutional efficacy of rollback legislation, various unpublished memoranda of our 

Office before 1987 expressed the same view. In these memoranda, we 

noted the possible constitutional questions about the effectiveness of 

salary rollbacks but advised that such rollbacks would achieve compliance 

with the Ineligibility Clause. In 1969, then-Assistant Attorney General 

William H. Rehnquist stated that the argument for the constitutionality of 

an appointment after a rollback was “perfectly tenable,” even though, in 

his view, the Ineligibility Clause would be “literally violated.” Memorandum for Bryce N. Harlow, from William H. Rehnquist, Assistant Attorney 

General, Office of Legal Counsel, Re: Statutory Language to Avoid Prohibition of Article I, Section 6, United States Constitution at 2 (Nov. 24, 

1969).2 And in 1980 we advised that legislation to lower the salary of the 

Secretary of State would permit the appointment of Senator Edmund 

Muskie to that position. Memorandum for Alan A. Parker, Assistant 

Attorney General, Office of Legislative Affairs, from Larry L. Simms,

Deputy Assistant Attorney General, Office of Legal Counsel, Re: Enrolled bill, “To ensure that the compensation and other emoluments 

attached to the office of Secretary of State are those which were in effect 

January 1, 1977” (S. 2637) (May 8, 1980).

However, in an unpublished opinion written in 1987, this Office reversed course and concluded that salary rollbacks do not satisfy the Ineligibility Clause, thus adopting the “snapshot” interpretation of the Clause. 

See Cooper Memorandum at 2.3 The 1987 opinion argued that the contra-

 2 A memorandum from then-Assistant Attorney General Antonin Scalia in 1974 assumed the effectiveness under the Ineligibility Clause of the salary rollback for Attorney 

General Saxbe and concluded that, although the matter was not free from doubt, the 

Ineligibility Clause did not bar the same Congress in which Mr. Saxbe had served from 

restoring the Attorney General’s salary to its previous level after Mr. Saxbe’s appointment. Memorandum for Hugh M. Durham, Chief, Office of Legislative Affairs, from 

Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Re: Proposed Bill 

to Increase the Salary of the Attorney General (Nov. 22, 1974).

3 An opinion of Attorney General Holmes Conrad concluded in 1895 that Senator Ransom was ineligible under the Clause to be appointed as envoy extraordinary and minister 

plenipotentiary to Mexico where the salary for that position had been increased during his 
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205

ry view “simply ignores the plain language of the Ineligibility Clause.” Id.

at 6. It also argued that in light of “serious reservations about the wisdom 

of giving to the executive the power to appoint legislators to lucrative and 

prestigious executive and judicial offices,” the Framers had “tried to limit 

the instances in which the executive could offer such enticements [as 

appointment to office] to legislators.” Id. Furthermore, because a rolledback salary could be restored to the higher level immediately after the 

appointment, rollbacks “would largely render [the Ineligibility Clause] a 

nullity.” Id. at 7. Thus, the opinion reasoned, rollback legislation would 

“serve[] to frustrate the intentions of the Framers” by making more such 

appointments possible. Id. at 6.4 The 1987 opinion had set forth the official view of the Office.

II.

Contrary to the conclusion of the 1987 opinion, however, we do not 

believe the phrase “shall have been encreased” sets forth “plain language” 

that renders rollback legislation incapable of bringing an appointment into 

compliance with the Ineligibility Clause. The “snapshot” interpretation 

favored by the 1987 opinion is but one possible interpretation of the text 

and, as a matter of plain language, there is no basis for concluding that it 

is superior to the “on net” reading that opinion failed to credit.

The “on net” construction represents an entirely natural interpretation 

of the language. If a potential investor asked for a prediction at the beginning of a year whether a stock index “shall have been encreased” during 

the year, the question would call for a prediction whether the index would 

be higher at the year’s end as compared to the year’s beginning, rather 

than whether the index would go up at any point during that year, as it 

 

term. See Member of Congress—Appointment to Office, 21 Op. Att’y Gen. 211 (1895). 

However, the efficacy of rollback legislation was not at issue.

4 A number of scholars who testified in 1973 on the proposed rollback legislation 

reached the same conclusion as the 1987 opinion. See, e.g., To Reduce the Compensation 

of the Office of Attorney General: Hearing on S. 2673 Before the S. Comm. on the Judiciary, 93rd Cong. (1973) (statements of Philip Kurland, William F. Swindler, Paul J. 

Mishkin, and William D. Lorenson). Other commentators have taken the same view. See,

e.g., 1 Westel Woodbury Willoughby, The Constitutional Law of the United States 607 

(1929); Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907 

(1994).
33 Op. O.L.C. 201 (2009)

206

inevitably would on numerous occasions every day. Congressman Marlin 

Olmsted made this point in the debates relating to Senator Knox, noting 

that:

even the letter [of the Ineligibility Clause], fairly interpreted, would 

not apply to this case. After this act is passed it can not be said that 

the salary of the Secretary of State has been increased, for the salary 

will then be precisely the same as it had existed for many years prior 

to the senatorial term which any member of that body was serving in 

1907 [when the act to be rolled back was passed].

43 Cong. Rec. 2411 (1909).

This reading also accords with the usage of the word “increased” 

around the period in which the Clause was enacted. For example, in a 

report to Congress shortly after the founding, an organization of manufacturers noted that “[t]he value of goods manufactured in the United States 

. . . amounted, as early as 1810, to upwards of one hundred and seventytwo millions of dollars, which value was very greatly increased during the 

late war.” 36 Annals of Cong. 2288 (1819). Such an observation cannot be 

understood to mean that at one time during the period concerned the value 

of the goods had increased, but that the value had returned to its original, 

lower level by the time of the statement. See also, e.g., Alexander Hay, 

The History of Chichester 574 (West Sussex Co. & Dioscesan Record 

Office 1804) (noting that “[t]here is no reason to doubt the accuracy of the 

survey of 1801, unless it should be suspected that it . . . was taken at the 

desire of the ministery . . . that the population of the kingdom should 

appear increased, and not diminished, after a long destructive war”).

We need not conclude, however, that the “on net” interpretation is, as a 

matter of the plain language, superior to the “snapshot” interpretation. 

The possibility of these two reasonable constructions shows that, at a 

minimum, there is no definitive “plain meaning” of the Ineligibility 

Clause and thus that the text standing alone is ambiguous. Therefore, we 

must look to evidence of the understandings of the drafters and ratifiers of 

the Constitution, the purposes of the Clause, and the practice of the political branches in construing and applying that Clause.

5

 5 In concluding that Senator Kirkwood was ineligible to be appointed to the office of 

tariff commissioner, an opinion of Attorney General Benjamin Harris Brewster stated that 

“[i]t is unnecessary to consider the question of policy which occasioned this constitutional 
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III.

In his treatise on the Constitution, Joseph Story wrote that:

[t]he 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.

Joseph Story, Commentaries on the Constitution of the United States

§ 440, at 311 (Ronald D. Rotunda & John E. Nowak eds., 1987). In other 

words, Justice Story did not read the Clause as if it were intended to 

prevent members of Congress from receiving Executive Branch appointments. Rather, he understood it to have been designed to guard against the 

particular problems that the prospect of such executive appointments 

might raise. This more qualified understanding of the Clause’s purpose

finds support in the debates at the Constitutional Convention, and we 

believe it supplies the correct basis for construing the Ineligibility Clause 

and applying its restriction on conferring “emoluments” to the issue here.

The Convention considered a number of variations with respect to the 

Ineligibility Clause. Under the earliest version, as set out in the Virginia 

Plan’s fourth and fifth resolutions, members of Congress would have been 

“ineligible to any office” under the authority of the United States during 

their term of election and for some time thereafter, whether or not the 

office in question had been created, or its emoluments increased, during 

the legislator’s term. 1 The Records of the Federal Convention of 1787,

at 20 (Max Farrand ed., rev. ed. 1966). In contrast, a proposal offered by 

Nathaniel Ghorum of Massachusetts would have eliminated the Ineligibility Clause altogether. Id. at 375. This proposal reflected the concern 

 

prohibition.” Appointment to Civil Office, 17 Op. Att’y Gen. 365, 366 (1882). Senator 

Kirkwood, however, was barred from appointment under the Ineligibility Clause because 

the office unquestionably was “created” during his term as Senator. Therefore, there was 

no ambiguity in the plain text giving rise to a need to examine the purposes behind the 

restriction.
33 Op. O.L.C. 201 (2009)

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that a bar on the appointment of members of Congress to other offices 

would limit the number of capable persons who could serve in government. See id. at 376. For example, James Wilson stated that “[s]trong 

reasons must induce me to disqualify a good man from office,” id. at 379, 

and that “we ought to hold forth every honorable inducement for men of

abilities to enter the service of the public,” id. at 380. Alexander Hamilton 

made the additional argument that the Executive would need the power to 

appoint Senators and Representatives to high office: “Our prevailing 

passions are ambition and interest,” Hamilton observed, and the executive 

might have to “avail himself of those passions” to induce the legislature to 

act for “the public good.” Id. at 381.

Between these two extremes—one which would have established a categorical bar against any sitting member of Congress’s appointment to 

Executive office and another which would have placed no restrictions on 

such appointments at all—James Madison argued for a “middle ground 

between an eligibility in all cases, and an absolute disqualification.” Id. at 

388. Although Madison opposed the severity of the Virginia Plan’s provisions, he conceded that there were instances in which the appointment of 

a member of Congress to another office would be undesirable. Without 

some form of the Ineligibility Clause, “there may be danger of creating 

offices or augmenting the stipends of those already created, in order to 

gratify some members if they were not excluded.” Id. at 380. Appointing 

members of Congress to newly created offices or to offices with recently 

augmented salaries “were the evils most experienced,” and Madison 

supposed that “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.” Id. at 386. The goal was for “the national legislature to be as uncorrupt as possible.” Id. at 392.

Although the version of the Clause that the Committee on Detail eventually presented to the Convention was a modification of the broad restriction in the Virginia Plan,6 Madison’s middle position eventually 

prevailed. 2 id. at 492. The aim behind the Ineligibility Clause was thus to 

 6 Article VI, Section 9 of the draft Constitution made members of the House “ineligible 

to, and incapable of holding any office under the authority of the United States” during 

the term for which they have been elected. 2 The Records of the Federal Convention of 

1787 at 180. This version also made Senators “ineligible to, and incapable of holding any 

such office for one year afterwards.” Id.
Statutory Rollback of Salary to Permit Appointment of Member of Congress

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take away the possibility that Congress would create offices or increase 

emoluments in order to “gratify” members who might then gain appointment, while preserving sufficient eligibility for the appointment to executive office of qualified officials serving in Congress.

7 In that way, the 

Clause would ensure that the national legislature would be “as uncorrupt 

as possible.” 1 id. at 392.

This basic purpose, as reflected in the Clause’s drafting history, helps 

to resolve the ambiguity in the text. It indicates that the phrase “shall have 

been encreased” should be construed to mean “shall have been encreased 

on net” during the course of a Congress member’s term. The alternative, 

snapshot reading, while plausible linguistically, would result in the Clause 

operating as a nearly categorical bar to the appointment of members of 

Congress, given the likelihood of a salary increase during a member’s 

(and particularly a Senator’s) term. Such a broad bar to appointment, 

however, is what Madison and other delegates sought to avoid by adopting Madison’s compromise position and rejecting the complete bar to 

eligibility for members of Congress that had been proposed. Madison’s 

compromise position, and the version of the Clause ultimately adopted, to 

use Justice Story’s words, reflects the “reasons for excluding persons 

from offices” rather than an intention to establish a restriction that would 

be untethered to those specific reasons. As first Madison, and then Justice 

Story, explained, those reasons related to the concern that members of 

Congress would vote to establish new or higher paying offices to “gratify” 

themselves as future officeholders rather than out of a disinterested judgment about the need for such legislation.

This understanding of the Clause’s purpose reveals the superiority of 

the “on net” construction of the ambiguous textual phrase “shall have 

been encreased.” A member of Congress could hardly be said to be seeking to “gratify” himself in approving legislation to increase the salary of 

an office if he knew that the Clause would bar him from taking that office 

unless the salary had first been rolled back prior to his appointment. As 

 7 During the ratification debates in Virginia, Madison explained that the Ineligibility 

Clause “guards against abuse by taking away the inducement to create new offices, or 

increase the emoluments of old offices.” 10 The Documentary History of the Ratification 

of the Constitution 1262 (John P. Kaminski & Gaspare J. Saladino eds., 1976–1993). But 

he also noted that it would be “impolitic to exclude from the service of his country, in any 

office, the man who may be most capable of discharging its duties, when they are most 

wanting.” 3 The Records of the Federal Convention of 1787 at 315.
33 Op. O.L.C. 201 (2009)

210

Acting Attorney General Bork stated, “the expectation of a higher salary 

cannot influence Senators’ or Representatives’ votes on legislation to 

raise salaries . . . if a Senator or Representative knows . . . that should he 

ever be nominated for [an office with a raised salary] during his term of 

office, he will have to accept the lower salary.” Bork Statement at 11.

The allowance for rollback legislation, therefore, does not violate the 

“plain language” of the Clause, or otherwise frustrate its purposes, as our 

1987 opinion erroneously concluded. To the contrary, construing the 

Clause to permit appointments following rollback legislation advances the 

purposes behind the Ineligibility Clause by “assur[ing] the appointment 

eligibility of Members of Congress where there is no possibility of profit 

from offices created, or salaries increased, during the time for which they 

were elected.” See To Reduce the Compensation of the Office of Attorney 

General: Hearing on S. 2673 Before the S. Comm. on the Judiciary 51 

(1973) (Statement of William Van Alstyne) (“Van Alstyne Statement”).

As Senator Philip Hart said in the debates on the rollback legislation for 

William Saxbe, such a law “would not ‘evade’ the bar intended by the 

Framers; rather, it would implement it and maintain its effectiveness, both 

in the present instance and as a deterrent to log rolling or improper executive-legislative collaboration in the future.” 119 Cong. Rec. 38,346 

(1973). Thus, he continued,

rather than saying [the law] permits evasion of the constitutional 

provision, it is more correct to say the ban has here served its purpose. It has forced a statute denying any benefit, and without the 

statute the ban would prevent the appointment. If the purpose can 

thus be accomplished, to do more would do violence to the other 

competing consideration in the original compromise: namely, Madison’s concern that good men not be precluded from executive service for existing posts.

Id. at 38,347.8 See also Dixon Statement at 71, 81 (“A major purpose of 

the Ineligibility Clause . . . was the prevention of the evils which would 

 8 As Professor Van Alstyne pointed out, grants of immunity under the Fifth Amendment are analogous. Van Alstyne Statement at 56, 66. The Fifth Amendment provides that 

“[n]o person . . . shall be compelled to be a witness against himself in any criminal case.”

Testimony may be compelled, however, if the witness is granted immunity, so that the 

testimony cannot be used against him. 18 U.S.C. § 6002 (2006); Kastigar v. United 
Statutory Rollback of Salary to Permit Appointment of Member of Congress

211

arise if legislators could benefit from the creation of new offices or increase in the emoluments of existing ones . . . . S. 2673 would overcome 

the former evil regarding emoluments by preventing Senator Saxbe from 

obtaining the benefit of the 1969 salary increase.”). Senator Olmstead, in 

defending the constitutional efficacy of the rollback legislation proposed 

to permit the appointment of Senator Knox, expressed the similar view 

that such proposed legislation “if enacted will be not an evasion of, but in 

compliance with [the Ineligibility Clause].” 43 Cong. Rec. 2410 (1909).

9

Some commentators favoring the “snapshot” interpretation have argued 

that, contrary to Justice Story’s view, the predominant purpose of the 

Ineligibility Clause was “to protect against legislative corruption by the 

executive’s appointment power” and “to prevent the offering of high 

position as an inducement to legislators.” See Daniel H. Pollitt, Senator/Attorney-General Saxbe and the “Ineligibility Clause” of the Constitution: An Encroachment Upon Separation of Powers, 53 N.C. L. Rev. 

111, 122–23 (1974); Comment, The Ineligibility Clause: An Historical 

Approach to Its Interpretation and Application, 14 John Marshall L. Rev. 

819, 824 n.31, 828 (1981). But see John F. O’Connor, The Emoluments 

Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 

Hofstra L. Rev. 89, 164, 172–73 (1995) (arguing that the Framers did not 

view this as the central purpose of the Clause). Assistant Attorney General Dixon recognized this as a purpose of the Clause in testifying before 

Congress on the rollback bill introduced to permit the appointment of 

Senator Saxbe as Attorney General, see Dixon Statement at 70, and our 

1987 opinion recognizes it as well, see Cooper Memorandum at 6.

 

States, 406 U.S. 441 (1972). The federal immunity statute is not an “evasion” of the Fifth 

Amendment. Rather, it respects the constitutional command.

9 It might be argued that the text of the Ineligibility Clause precludes the effectiveness 

of rollback legislation, because it does not expressly permit Congress to make exceptions, 

in contrast with other constitutional provisions. For example, the Emoluments Clause 

states that “no Person holding any Office or Profit or Trust under them, shall, without the 

Consent of the Congress, accept of any present, Emolument, Office or Title, of any kind 

whatever, from any King, Prince, or foreign State.” U.S. Const. art. I, § 9, cl. 8. Rollback 

legislation, however, is not an exception to the Clause, but rather a means for ensuring 

that the facts that would trigger the bar are not in place. Rollback legislation is thus more 

analogous to situations in which the Emoluments Clause would not apply at all, such as 

when the gift comes from a foreign jurisdiction after Congress has incorporated it into the 

United States.
33 Op. O.L.C. 201 (2009)

212

This alternative account of the purpose of the Clause does not, however, favor the “snapshot” interpretation, and thus it does not cast doubt on 

the constitutional effectiveness of rollback legislation. Even if one understands a concern about undue executive pressure on the legislature to have 

influenced the delegates to the Constitutional Convention in negotiating 

the Clause, the “on net” construction of “shall have been encreased” is 

still the superior reading. Although there is some support in the history of 

the Constitutional Convention for the view that the drafters of the Ineligibility Clause had a concern about improper executive influence through 

the appointment power, the text of the Clause shows that this concern was 

not its overriding and unqualified purpose. By its terms, the Clause does 

not prohibit the President from appointing a sitting member of Congress 

to an Executive Branch office. The delegates rejected the Virginia Plan, 

which would have done so. In that regard, the Clause could not have been 

designed to root out any possible Executive Branch use of the appointment power to influence members of Congress. Indeed, in forging his 

compromise, Madison was clear in not seeking to impose such a draconian rule. See Van Alstyne Statement at 53 (“[N]ot to recognize the efficacy 

of [rollback legislation] . . . would itself offend one of the reasons that 

accounted for the final form of [the Ineligibility Clause]: to assure the 

eligibility of Members of Congress for appointment to vacancies in existing offices, insofar as neither the office itself nor any prerequisite associated with that office would result to them as a consequence of any act of 

Congress during [their] term.”).

The issue, then, is whether the “snapshot” interpretation of “shall have 

been encreased” would appreciably guard against the corrupting influence 

of executive appointments, even though the Clause poses no general bar 

to the Executive offering them as inducements. We do not see how it 

would. A construction of the Clause that would permit rollback legislation 

would seem well-designed to check the Executive from unduly influencing congressional members with the prospect of attractive appointments, 

given that appointments in general are not prohibited. Any tangential

effect that the increase in the pay of an office might otherwise have on the 

President’s ability to influence Congress by promising appointment to 

such office would be negated by the expectation of the enactment of 

rollback legislation. Thus, as with the desire to avoid self-dealing by the 

legislature, conceding the efficacy of rollback legislation would comport 

with this purpose of the Ineligibility Clause. See Dixon Statement at 71 
Statutory Rollback of Salary to Permit Appointment of Member of Congress

213

(“S. 2673 would overcome the . . . evil regarding emoluments by preventing Senator Saxbe from obtaining the benefit of the 1969 salary increase 

and any other emoluments, without wastefully barring him from offering 

his services to the country in an appointive office.”). Or at least, the

possibility of corrupting influence would exist only insofar as it would 

exist in the absence of the Ineligibility Clause altogether: by its terms, the 

Ineligibility Clause does not prevent Congress and the President from 

colluding to make a deal in which the President would appoint a congressional member to an office (the salary of which had never been raised 

during the relevant period) and Congress would later raise the salary of 

that office. See Mikva I, 3 Op. O.L.C. at 288; Member of Congress—

Appointment to Civil Office Prior to Pay Increase, 42 Op. Att’y Gen. 381 

(1969) (concluding that subsequent increase in the emoluments of an 

office would not disqualify a member from appointment to that office). 

We thus disagree with the 1987 opinion’s assertion that conceding the 

efficacy of rollback legislation would “serve[] to frustrate the intentions 

of the Framers.” Cooper Memorandum at 6.

Finally, it has been argued that the Framers intended the Ineligibility 

Clause to limit the growth of the national government, and that this purpose would be best served by denying the effectiveness of rollback legislation. See O’Connor, Emoluments Clause, 24 Hofstra L. Rev. at 164, 

170–71. According to this argument, if rollback legislation is ineffective, 

Congress will be less likely to increase the pay of offices in the first 

instance, because its members will want to maintain their eligibility for 

appointment; as a result, the purpose of economy will be advanced more 

completely than if a rollback were effective. Id. at 170–71. This argument, 

we believe, is mistaken and cannot be reconciled with the text of the 

Ineligibility Clause. It would find in the Ineligibility Clause a purpose to 

restrict the pay of all offices, including those filled by persons who are not 

appointed from the Congress after a salary increase and thus are not 

mentioned in the Ineligibility Clause. If that were the intended function of 

the Clause, however, it would not have been drafted in so limited a manner. To the extent the debates in the Constitutional Convention considered 

the relationship of the Ineligibility Clause to the size of the federal government, the delegates tied that concern to the increases that would result 

from allowing members of Congress to create, or raise the pay of, offices 

they would themselves then occupy. See, e.g., 1 The Records of the Federal Convention of 1787 at 380 (Mason) (cautioning that, without the
33 Op. O.L.C. 201 (2009)

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Ineligibility Clause, members of Congress “may make or multiply offices, 

in order to fill them”); see also id. at 387 (Mason) (referring to the Virginia legislature’s “partiality . . . to its own members”); id. at 388 (Elbridge 

Gerry) (members will care more about themselves than their relatives and 

friends); id. at 392 (Madison) (all “public bodies” are inclined to support 

their own members).

Our construction depends on the judgment that rollback legislation suffices to further the Clause’s underlying purposes, but those who take the 

other side of this question have contested that judgment. They contend 

that, even with rollback legislation, the purposes of the Ineligibility 

Clause are not fulfilled. They raise three arguments along these lines.

The first argument is that “an office for which Congress has once voted 

a pay increase has been made more attractive . . . even if Congress passes 

remedial legislation,” because “in such a case Congress is infinitely more 

likely to revote the pay increase as soon as the [member’s] disqualification expires than if Congress had never voted a pay increase for the 

office.” 119 Cong. Rec. 38,331 (1973) (letter from then-Professor Stephen 

G. Breyer). This argument is arguably supported by some practice. Setting 

aside the two most recent instances of rollback legislation, of the remaining five instances where Congress rolled back salaries for specific appointees, the appointees in two cases later benefitted, however briefly, from a 

restored salary. Philander Knox’s term as Senator would have ended in 

1911; subsequently, in 1912, his previously rolled-back salary as Secretary of State was increased, see Pub. L. No. 62-299, 37 Stat. 360, 372 

(1912), and he enjoyed that benefit until he resigned in 1913. The bill 

rolling back the salary in the case of Representative Casey provided for a 

salary increase to the pre-rollback position at the end of what would have 

been his congressional term or upon the appointment of a successor to his 

executive office, whichever was earlier. Pub. L. No. 94-195, § 1(b), 89 

Stat. 1108 (1975). His term would have ended in January 1977, yet he 

remained at the Federal Maritime Commission until October 1977, meaning that he enjoyed a few months of the higher salary after his congressional term would have expired.10

 10 The legislation affecting Senator Muskie also included such a provision. Pub. L. No. 

96-241, § 1(b), 94 Stat. 343 (1980). But Secretary of State Muskie resigned before the 

term for which he had been elected Senator would have ended.
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215

Despite the force of this argument, at the time Congress first acts to 

increase the salary of the federal office, that higher level of pay remains a 

“conjectural reward[] a nominee may enjoy after his [congressional] term 

expires.” 119 Cong. Rec. 38,347 (1973) (statement of Senator Hart, arguing that weighing such rewards goes beyond the bounds drawn by the 

Framers); cf. Applicability of Ineligibility Clause to Appointment of Congressman Tony P. Hall, 26 Op. O.L.C. 40, 42–43 (2002) (noting, with 

respect to an office the pay for which is set at the time of each appointment, that although prior action raising the salary of the previous appointee to the office “arguably might lead to some expectations about the 

salary to be paid [to the subsequent appointee] . . . this expectation is, in 

the end, a matter of speculation” and “[u]ntil the President [] or his delegate acts, there are no emoluments attached to the office in question”). At 

the time of a salary increase, it cannot be known whether Congress in the 

future, if it rolls back the increase, will also provide for its restoration or 

whether the prospective appointee will still occupy the executive office at 

the time that any such restoration takes effect. In three of the five historical cases of individual rollbacks, the appointees never drew a restored 

salary. Attorney General Saxbe’s term would have ended in January 1975; 

he resigned in February 1975; and later that month Congress restored the 

Attorney General’s salary, retroactively to the day after Mr. Saxbe’s 

resignation. Pub. L. No. 94-2, 89 Stat. 4 (1975). Upon a change in administration, Secretary of State Muskie resigned before the term for which he 

had been elected Senator would have ended. Treasury Secretary Bentsen 

resigned in 1994, shortly after the end of the term for which he had been 

elected Senator. Congress did not restore the salary for the office of 

Secretary of the Treasury until 1997. Pub. L. No. 105-61, § 116, 111 Stat. 

1272, 1284 (1997). The possibility that an officer appointed after a salary 

rollback will ever receive the higher salary is speculative. At the very 

least, there is no practice, as far as we have been able to determine, of 

Congress’s immediately increasing salaries after a rollback, as thenProfessor Breyer conjectured.

The second argument contends that, whether or not the fact of an increase during a member’s term makes a post-appointment increase more 

likely, the current Congress, through a post-appointment enactment, might 

immediately restore the rolled-back salary of the position after the member of Congress is appointed. The 1987 opinion states: “Congress could in 

all cases reduce the salary of the congressman on the day before he is 
33 Op. O.L.C. 201 (2009)

216

nominated and restore it to its increased level on the day after he is commissioned.” Cooper Memorandum at 6. As explained above, it does not 

appear that Congress has ever taken such a step. Nevertheless, according 

to this argument, the mere possibility that Congress might restore the 

salary as of the day after commissioning demonstrates the invalidity of the 

rationale on which rollback legislation is based.

This argument has prompted a range of responses. Acting Attorney 

General Bork said that he “would like to address that question at that 

time, if things fall out that way.” Bork Statement at 12. Professor Van 

Alstyne took the position that the former member could not accept a 

salary increase enacted by the same Congress that voted a rollback. Van 

Alstyne Statement at 53. Assistant Attorney General Scalia thought that, 

although the matter was not free from doubt, a post-appointment enactment restoring the salary would be constitutional and could be accepted 

by the former member. Memorandum for Hugh M. Durham, Chief, Office 

of Legislative Affairs, from Antonin Scalia, Assistant Attorney General, 

Office of Legal Counsel, Re: Proposed Bill to Increase the Salary of the 

Attorney General at 3 (Nov. 22, 1974) (“Scalia Memorandum”).

We agree with Acting Attorney General Bork’s approach: there is no 

need to deal with this issue until Congress actually seeks to restore a 

rolled-back salary immediately upon an appointee’s taking office. We 

only note that, even if Congress did take such action, it would not necessarily be inconsistent with the purposes behind the Ineligibility Clause.

The former member, no longer being in Congress, might have lost much 

of his power to influence congressional action. Thus, a salary restoration

enactment after his appointment to office might not be a subterfuge by 

which the constitutional restraint against self-dealing would be avoided.

Likewise, post-appointment legislation restoring the salary of an office to 

its pre-rollback level would not promote the ability of the Executive 

corruptly to wield influence over the Legislative Branch insofar as the 

appointment would already have been completed. The speculative possibility, pre-appointment, that the salary of the office would later be restored, would hardly seem sufficient enticement to achieve improper 

executive influence over prospective appointees in Congress. Accordingly, the possibility of the repeal of the salary rollback, in itself, is not a 

good reason for abandoning the view that a salary rollback achieves 

compliance with the Ineligibility Clause.
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The third and final argument is that “the purpose of the provision is to 

prevent Congress from [passing] special legislation for the benefit of one 

of its own Members” and that a rollback statute “would have no function 

or purpose except to qualify a particular member of . . . Congress for an 

office for which he could not otherwise qualify.” To Reduce the Compensation of the Office of Attorney General: Hearing on S. 2673 Before the 

S. Comm. on the Judiciary, 93d Cong. 6 (1973) (statement of Professor 

Philip Kurland). Unlike the first two arguments, this one attacks the 

constitutionality of the rollback legislation itself, rather than the subsequent appointment.11 In precisely this respect, however, the argument 

does not square with the language of the Ineligibility Clause. By its terms, 

the Clause does not address any legislation, whether for the benefit of a 

particular congressional member or for the benefit of a more general 

class. Instead, it forbids appointment to civil office. See Scalia Memorandum at 4. This argument, therefore, does not convincingly answer the case 

in favor of the effectiveness of rollback legislation.

IV.

Our conclusion that the history and purposes of the Clause favor a construction of the text that permits rollback legislation to bring an appointment into constitutional compliance draws further support from the practice of the political branches for more than a century. Several Congresses, 

as well as administrations of both parties, have affirmed that salary rollbacks achieve compliance with the Ineligibility Clause.

On at least seven occasions since the Civil War, Congress has rolled 

back the salary paid for service in an office, and subsequent to such rollbacks, the Senate has confirmed and the President has appointed a member of Congress who would otherwise have been barred from that office.

First, in 1876, while Senator Lot M. Morrill was serving a term that had 

begun in 1871, he was nominated, confirmed, and appointed as Secretary 

of the Treasury. Congress had raised cabinet members’ salaries from 

$8,000 to $10,000 in 1873 and then, in an effort at fiscal retrenchment, 

 11 Professor Van Alstyne’s answer to the second objection—that a statute to restore an 

appointee’s salary before the end of the term for which he had been elected would be 

unconstitutional—is similar to the third objection in the sense that it asserts the unconstitutionality of legislation, rather than of an appointment.
33 Op. O.L.C. 201 (2009)

218

had returned the salaries in 1874 to their previous level. Act of Mar. 3, 

1873, ch. 226, 17 Stat. 485, 486 (1873); Act of Jan. 20, 1874, ch. 11, 18 

Stat. 4 (1874). In this instance, unlike the others that followed, the lowering of the salary was not expressly for the purpose of achieving compliance with the Ineligibility Clause. Nevertheless, absent the salary reduction, Senator Morrill would not have been eligible for the office. Second, 

in 1909, Congress reduced the salary of the Secretary of State so that 

Senator Philander Knox could be appointed to the office. During Knox’s 

term in the Senate, Congress had raised the salary of cabinet positions 

from $8,000 to $12,000. Pub. L. No. 59-129, 34 Stat. 935, 948 (1907).

When President Taft announced his intention to nominate Knox, Congress 

reduced the Secretary of State’s salary to $8,000, Pub. L. No. 60-235, 35 

Stat. 626 (1909), and Knox was then confirmed and appointed. Third, in 

1973, Congress reduced the Attorney General’s salary from $60,000 to 

$35,000, thus rolling back a raise that had become effective during William Saxbe’s term in the Senate. Pub. L. No. 93-178, 87 Stat. 697 (1973).

Fourth, at the request of Attorney General Edward H. Levi, Congress in 

1975 reduced the salary of a position as Federal Maritime Commissioner, 

in order to permit Congressman Robert Casey to be appointed, and Casey 

was confirmed and appointed to that position. Pub. L. No. 94-195, 89 Stat. 

1108 (1975); 121 Cong. Rec. 40,811 (1975). Fifth, in 1980, Congress 

rolled back the salary of the Secretary of State to permit Senator Edmund 

Muskie to be appointed. Pub. L. No. 96-241, 94 Stat. 343 (1980). Sixth, in 

1993, a salary rollback for the Secretary of the Treasury enabled Senator 

Lloyd Bentsen to be appointed. Pub. L. No. 103-2, 107 Stat. 4 (1993). The 

bill was signed by President George H.W. Bush, without any mention of 

a constitutional concern. 2 Pub. Papers of Pres. George Bush app. D, at 

2323 (1992–93). Finally, Congress passed legislation, signed by President 

George W. Bush, rolling back the salary for the Secretaries of State and 

the Interior in order to permit the appointment of Senators Hillary Clinton 

and Ken Salazar to those respective offices by President Obama once he 

assumed office. See Pub. L. No. 110-455, 122 Stat. 5036 (2008) (concerning emoluments of Secretary of State); Pub. L. No. 111-1, 123 Stat. 3 

(2009) (concerning emoluments of Secretary of the Interior).12

 12 The Ineligibility Clause was also at issue when President Roosevelt nominated 

Senator Hugo Black to the Supreme Court. Note, Courts—Legality of Justice Black’s 

Appointment to Supreme Court, 37 Colum. L. Rev. 1212 (1937). The Senate, in passing 
Statutory Rollback of Salary to Permit Appointment of Member of Congress

219

On two of these occasions, Congress thoroughly debated the constitutional issues before approving the rollback legislation. In 1909, the bill to 

reduce the salary of the Secretary of State prompted a full debate in the 

House of Representatives, during which opponents of the measure argued 

for its defeat on the ground that it would not bring Senator Knox’s prospective appointment into conformity with the Ineligibility Clause. See

H.R. Rep. No. 2155, at 2–3 (1909) (Views of the Minority); 43 Cong. 

Rec. 2390–2402, 2410–2415 (1909). Eventually, Congress voted to pass 

the rollback legislation, and it was signed by President Taft. Again in 

1973, when the bill to roll back the Attorney General’s salary was under 

consideration, the Post Office and Civil Service Committee and the Judiciary Committee of the Senate held hearings on the constitutional issues, 

and the Senate debated those issues at length. Office of the Attorney 

General: Hearing on S. 2673 Before the S. Comm. on Post Office and 

Civil Service, 93d Cong. (1973); To Reduce the Compensation of the 

Office of Attorney General: Hearing on S. 2673 Before the S. Comm. on 

the Judiciary, 93d Cong. (1973); 119 Cong. Rec. 36,484–36,485, 38,315–

38,349 (1973). After this deliberation, Congress passed the bill, Pub. L. 

 

the Retirement Act of 1937, had increased the retirement pay of Justices. Pub. L. No. 10, 

75 Stat. 24 (1937). It was argued at the time that there had been no increased emolument 

as to Justice Black because he would not have become eligible for retirement unless he 

served for almost 20 years on the Court. Edward S. Corwin, The President: Office and 

Power, 1787–1957, at 72–73 (4th rev. ed. 1957); see also State ex rel. Todd v. Reeves, 82 

P.2d 173 (Wash. 1938) (contemporaneous case reaching conclusion that retirement 

benefits are not “emoluments” under state constitution); cf. President Reagan’s Ability to 

Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187 (1981) 

(California retirement benefits are not “emoluments” within the constitutional provision 

barring the President from receiving “emoluments” from any state); The Honorable 

George J. Mitchell, United States Senate, B-207,467, 1983 WL 27823 (Comp. Gen.) 

(Jan. 18) (same). After Senator Black was confirmed and took office, the Supreme Court 

dismissed, for lack of standing, a challenge to his authority as Justice. Ex parte Levitt, 302 

U.S. 633 (1937). The Black nomination did not involve any issue of rollback legislation.

Similarly, when Representative Abner Mikva was nominated to the United States Court of 

Appeals for the District of Columbia Circuit, opponents argued that his appointment was 

barred by a pay increase that might have gone into effect after his confirmation. Our 

Office concluded that it was uncertain whether the salary increase would take place and 

thus that the Ineligibility Clause would not forbid the appointment, Mikva I, 3 Op. O.L.C. 

at 289, and a challenge to Judge Mikva’s appointment was dismissed on standing grounds.

See McClure v. Carter, 513 F. Supp. 265 (D. Idaho), aff’d sub nom. McClure v. Reagan, 

454 U.S. 1025 (1981). Again, no issue of a rollback was involved.
33 Op. O.L.C. 201 (2009)

220

No. 93-178, 87 Stat. 697 (1973), President Nixon signed it without constitutional objection, and Congress subsequently confirmed Senator Saxbe as 

Attorney General.

Accordingly, the practice of the political branches, over more than a 

century and after serious deliberation, supports the effectiveness of rollback legislation to achieve compliance with the Ineligibility Clause. As 

Chief Justice John Marshall wrote in McCulloch v. Maryland, 17 U.S. 

(4 Wheat.) 315 (1819), where “the great principles of liberty are not 

concerned,” any doubtful question, “if not put at rest by the practice of the 

government, ought to receive a considerable impression from that practice.” Id. at 401.13

V.

For these reasons, we believe that, where a salary increase for an office 

would otherwise create a bar to appointment of a member of Congress 

under the Ineligibility Clause, compliance with the Clause can be 

achieved by legislation rolling back the salary of the executive office 

before the appointment.

DAVID J. BARRON

Acting Assistant Attorney General

Office of Legal Counsel

 13 Although the Presidents and Congresses passing rollback legislation could be seen as 

the parties that the Ineligibility Clause was meant to restrain, and thus it could be argued 

that their practice is not entitled to much weight, such an argument would overlook that 

Presidents, Senators, and Representatives all swear an oath pledging support for the 

Constitution, U.S. Const. art. VI, cl. 3, and should be presumed to take this oath seriously.

Their long-standing practice may not be conclusive, but surely it merits respect.