July 11, 1979

79-51 MEMORANDUM OPINION FOR THE

ATTORNEY GENERAL

Constitutional Law—Article I, Section 6, Clause

2—Appointment of Member of Congress to a Civil

Office

This responds to the informal request of the Senate Judiciary Committee for the opinion of the Department of Justice regarding an unsigned 

memorandum dated July 2, 1979, taking the position that Article I, Section 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 

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.

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 of 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-ofLiving Act, the salary rate of Federal judges is to be adjusted by a percentage 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 Comparability 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 annually 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 recommending 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 appropriate. Such an alternative also becomes effective in October, and it is 

to continue in effect unless, within a stated period, either House of Congress adopts a resolution disapproving the alternative plan. If a disapproval 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 legislation, 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 of which have already been increased, but rather whether he may be appointed to a judgeship as 

to which the emoluments may be increased subsequent to his appointment. To hold that in the latter situation he is precluded from appointment, it would be necessary to construe Clause 2 as barring the appointment 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 of 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 appointment, 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 constitutional 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 appointment.” Furthermore, he held that it did not apply where “ it is possible 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 increase 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 following 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 certain an appointment is valid, so in the present circumstances, until such an 

increase has become an accomplished fact, Representative Mikva’s appointment 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. Att’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' increased 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. Att’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 memorandum 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, returned to private life, and was being considered for appointment to the office 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 of 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 retroactively invalidate the appointment. This would, in effect, amount to his removal and thus 

would circumvent the constitutionally m andated process of impeachment 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 office 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). Accordingly, even if a salary increase were to become effective prior to the appointment 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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