b'Statutory Rollback of Salary to Permit Appointment of\nMember of Congress to Executive Office\nWhere a salary increase for an office would otherwise create a bar to appointment of a\nmember of Congress under the Ineligibility Clause, compliance with the Clause can be\nachieved by legislation rolling back the salary of the executive office before the appointment.\nMay 20, 2009\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nWe recently have reconsidered the question whether legislation to roll\nback a salary increase for an executive office can ensure compliance with\nthe Ineligibility Clause of the Constitution if such a rollback occurs before\na Senator or Representative is appointed to the office. The Ineligibility\nClause provides that \xe2\x80\x9c[n]o Senator or Representative shall, during the\nTime for which he was elected, be appointed to any civil Office under the\nAuthority of the United States, which shall have been created, or the\nEmoluments whereof shall have been encreased during such time.\xe2\x80\x9d U.S.\nConst. art. I, \xc2\xa7 6, cl. 2. Rollback legislation lowers the salary of an office\nto the level at which it stood before Congress enacted the increase that\nwould otherwise prohibit the appointment of a Senator or Representative.\nA 1987 opinion of this Office took the position that such a law, if passed\nbefore the nomination 1 of a Senator or Representative to an office, would\nnot achieve compliance with the Ineligibility Clause. See Memorandum\nfor the Counselor to the Attorney General, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, Re: Ineligibility of Sitting\nCongressman to Assume a Vacancy on the Supreme Court (Aug. 24,\n1987) (\xe2\x80\x9cCooper Memorandum\xe2\x80\x9d). That opinion was not in accord with the\nprior interpretations of this Clause by the Department of Justice and has\nnot consistently guided subsequent practice of the Executive Branch. For\nPresident Washington withdrew the nomination of William Patterson to the Supreme\nCourt in 1793 when it appeared Patterson\xe2\x80\x99s appointment would violate the Ineligibility\nClause. 32 The Writings of George Washington 362 (John C. Fitzpatrick ed., 1939). The\nPatterson episode established a practice of Presidents not making nominations unless and\nuntil any Ineligibility Clause restrictions are eliminated. See Office of the Attorney\nGeneral: Hearing on S. 2673 Before the S. Comm. on Post Office and Civil Service, 93d\nCong. 9 (1973) (statement of Robert H. Bork, Acting Attorney General of the United\nStates) (\xe2\x80\x9cBork Statement\xe2\x80\x9d); Appointment to Civil Office, 17 Op. Att\xe2\x80\x99y Gen. 522 (1883).\n1\n\n201\n\n\x0c33 Op. O.L.C. 201 (2009)\n\nthe reasons set forth below, we do not believe it reflects the best reading\nof the Ineligibility Clause.\nI.\nThe Ineligibility Clause prohibits the appointment of a Senator or Representative to an \xe2\x80\x9cOffice . . . which shall have been created, or the Emoluments whereof shall have been encreased\xe2\x80\x9d during \xe2\x80\x9cthe Time for which\n[the appointee] was elected [to the Congress].\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 6,\ncl. 2. As a linguistic matter, the words of the Clause suggest two possible\ninterpretations of the phrase \xe2\x80\x9cshall have been encreased.\xe2\x80\x9d Under the first\ninterpretation, \xe2\x80\x9cshall have been encreased\xe2\x80\x9d means \xe2\x80\x9cshall have ever been\nencreased.\xe2\x80\x9d The Clause thus would call for a series of \xe2\x80\x9csnapshots\xe2\x80\x9d: if at\nany time during the term of a member of Congress the emoluments of an\noffice are higher than at another time, the emoluments have \xe2\x80\x9cencreased\xe2\x80\x9d\nduring the member\xe2\x80\x99s congressional term, and therefore the member may\nnot be appointed to that office. Under this interpretation, even if a salary\nis rolled back before the appointment, it still has been \xe2\x80\x9cencreased\xe2\x80\x9d within\nthe meaning of the Clause. The alternative interpretation is to read \xe2\x80\x9cshall\nhave been encreased during such time\xe2\x80\x9d as \xe2\x80\x9cshall have been encreased on\nnet during such time,\xe2\x80\x9d thereby prohibiting the appointment of a congressional member to an office only when the emoluments of the office are\ngreater at the time of appointment than they were at the start of the member\xe2\x80\x99s term.\nThere is a long history of Executive Branch consideration of which of\nthese interpretations is better, and the Executive Branch has not yet come\nto rest on a conclusion. For the most part, however, the Executive\nBranch\xe2\x80\x99s interpretations have supported the effectiveness of statutory\nrollbacks to comply with the Ineligibility Clause, and thus they have\nadopted, at least implicitly, the \xe2\x80\x9con net\xe2\x80\x9d interpretation.\nWhen Congress was considering a bill to roll back the Secretary of\nState\xe2\x80\x99s salary in 1909 in order to permit the appointment of Senator Philander C. Knox, Assistant Attorney General Charles W. Russell gave an\n\xe2\x80\x9cunofficial opinion,\xe2\x80\x9d published in the Congressional Record, that \xe2\x80\x9cthe\npurpose, and the sole purpose of [the Ineligibility Clause] was to destroy\nthe expectation a Representative or Senator might have that he would\nenjoy the newly created office or the newly created emoluments,\xe2\x80\x9d and that\nif a salary increase \xe2\x80\x9cis made and then unmade, he can not get, or hope for,\n202\n\n\x0cStatutory Rollback of Salary to Permit Appointment of Member of Congress\n\nanything more than if there had been no such increase.\xe2\x80\x9d 43 Cong. Rec.\n2402, 2403 (1909) (citations omitted). Russell thus concluded that passage of the bill would permit the appointment to be made.\nIn 1973, Robert H. Bork, the Acting Attorney General, and Robert G.\nDixon, the Assistant Attorney General for the Office of Legal Counsel,\ntestified in favor of a rollback of the Attorney General\xe2\x80\x99s salary that was\nintended to permit the appointment of Senator William B. Saxbe as Attorney General, the salary for which office had been increased during the\nSenator\xe2\x80\x99s term in Congress. Acting Attorney General Bork stated that the\nrollback legislation \xe2\x80\x9cshould remove any constitutional question which\nmay be raised concerning the appointment of Senator Saxbe to be Attorney General of the United States.\xe2\x80\x9d Office of the Attorney General: Hearing on S. 2673 Before the S. Comm. on Post Office and Civil Service, 93d\nCong. 11 (1973) (statement of Robert H. Bork, Acting Attorney General\nof the United States) (\xe2\x80\x9cBork Statement\xe2\x80\x9d). He reasoned that, with regard to\nthe Ineligibility Clause, \xe2\x80\x9cthe rationale of the constitutional provision\n[would be] met because the expectation of a higher salary cannot influence Senators\xe2\x80\x99 or Representatives\xe2\x80\x99 votes on legislation to raise salaries\n. . . 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\nhave to accept the lower salary.\xe2\x80\x9d Id. Assistant Attorney General Dixon\nmade a similar argument. To Reduce the Compensation of the Office of\nAttorney 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) (\xe2\x80\x9cDixon Statement\xe2\x80\x9d)\n(\xe2\x80\x9c[The proposed rollback legislation] would overcome the . . . evil regarding emoluments by preventing Senator Saxbe from obtaining the benefit\nof the 1969 salary increase . . . without wastefully barring him from\noffering his services to the country in an appointive office.\xe2\x80\x9d).\nIn 1979, our Office again took this position. Although we concluded\nthat the Ineligibility Clause did not apply where a salary increase might\ntake place after Representative Abner Mikva\xe2\x80\x99s appointment to the Court\nof Appeals, we noted that \xe2\x80\x9ceven if a salary increase for Federal judges\ngenerally were to occur, Congress could, by legislation, exempt from\ncoverage the office to which Representative Mikva may be appointed.\xe2\x80\x9d\nAppointment of a Member of Congress as a Judge of the U.S. Court of\nAppeals for the District of Columbia Circuit, 3 Op. O.L.C. 286, 289\n(1979) (\xe2\x80\x9cMikva I \xe2\x80\x9d); accord Appointment of Member of Congress as a\n203\n\n\x0c33 Op. O.L.C. 201 (2009)\n\nJudge of the U.S. Court of Appeals for the District of Columbia Circuit\n( II ), 3 Op. O.L.C. 298 (1979). We cited the examples of Philander Knox\nand William Saxbe. Mikva I, 3 Op. O.L.C. at 289\xe2\x80\x9390.\nIn addition to those public statements endorsing the constitutional efficacy of rollback legislation, various unpublished memoranda of our\nOffice before 1987 expressed the same view. In these memoranda, we\nnoted the possible constitutional questions about the effectiveness of\nsalary rollbacks but advised that such rollbacks would achieve compliance\nwith the Ineligibility Clause. In 1969, then-Assistant Attorney General\nWilliam H. Rehnquist stated that the argument for the constitutionality of\nan appointment after a rollback was \xe2\x80\x9cperfectly tenable,\xe2\x80\x9d even though, in\nhis view, the Ineligibility Clause would be \xe2\x80\x9cliterally violated.\xe2\x80\x9d Memorandum for Bryce N. Harlow, from William H. Rehnquist, Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Statutory Language to Avoid Prohibition of Article I, Section 6, United States Constitution at 2 (Nov. 24,\n1969). 2 And in 1980 we advised that legislation to lower the salary of the\nSecretary of State would permit the appointment of Senator Edmund\nMuskie to that position. Memorandum for Alan A. Parker, Assistant\nAttorney General, Office of Legislative Affairs, from Larry L. Simms,\nDeputy Assistant Attorney General, Office of Legal Counsel, Re: Enrolled bill, \xe2\x80\x9cTo ensure that the compensation and other emoluments\nattached to the office of Secretary of State are those which were in effect\nJanuary 1, 1977\xe2\x80\x9d (S. 2637) (May 8, 1980).\nHowever, 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 \xe2\x80\x9csnapshot\xe2\x80\x9d interpretation of the Clause.\nSee Cooper Memorandum at 2. 3 The 1987 opinion argued that the contraA memorandum from then-Assistant Attorney General Antonin Scalia in 1974 assumed the effectiveness under the Ineligibility Clause of the salary rollback for Attorney\nGeneral Saxbe and concluded that, although the matter was not free from doubt, the\nIneligibility Clause did not bar the same Congress in which Mr. Saxbe had served from\nrestoring the Attorney General\xe2\x80\x99s salary to its previous level after Mr. Saxbe\xe2\x80\x99s appointment. Memorandum for Hugh M. Durham, Chief, Office of Legislative Affairs, from\nAntonin Scalia, Assistant Attorney General, Office of Legal Counsel, Re: Proposed Bill\nto Increase the Salary of the Attorney General (Nov. 22, 1974).\n3 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\nplenipotentiary to Mexico where the salary for that position had been increased during his\n2\n\n204\n\n\x0cStatutory Rollback of Salary to Permit Appointment of Member of Congress\n\nry view \xe2\x80\x9csimply ignores the plain language of the Ineligibility Clause.\xe2\x80\x9d Id.\nat 6. It also argued that in light of \xe2\x80\x9cserious reservations about the wisdom\nof giving to the executive the power to appoint legislators to lucrative and\nprestigious executive and judicial offices,\xe2\x80\x9d the Framers had \xe2\x80\x9ctried to limit\nthe instances in which the executive could offer such enticements [as\nappointment to office] to legislators.\xe2\x80\x9d Id. Furthermore, because a rolledback salary could be restored to the higher level immediately after the\nappointment, rollbacks \xe2\x80\x9cwould largely render [the Ineligibility Clause] a\nnullity.\xe2\x80\x9d Id. at 7. Thus, the opinion reasoned, rollback legislation would\n\xe2\x80\x9cserve[] to frustrate the intentions of the Framers\xe2\x80\x9d by making more such\nappointments possible. Id. at 6. 4 The 1987 opinion had set forth the official view of the Office.\nII.\nContrary to the conclusion of the 1987 opinion, however, we do not\nbelieve the phrase \xe2\x80\x9cshall have been encreased\xe2\x80\x9d sets forth \xe2\x80\x9cplain language\xe2\x80\x9d\nthat renders rollback legislation incapable of bringing an appointment into\ncompliance with the Ineligibility Clause. The \xe2\x80\x9csnapshot\xe2\x80\x9d interpretation\nfavored by the 1987 opinion is but one possible interpretation of the text\nand, as a matter of plain language, there is no basis for concluding that it\nis superior to the \xe2\x80\x9con net\xe2\x80\x9d reading that opinion failed to credit.\nThe \xe2\x80\x9con net\xe2\x80\x9d construction represents an entirely natural interpretation\nof the language. If a potential investor asked for a prediction at the beginning of a year whether a stock index \xe2\x80\x9cshall have been encreased\xe2\x80\x9d during\nthe year, the question would call for a prediction whether the index would\nbe higher at the year\xe2\x80\x99s end as compared to the year\xe2\x80\x99s beginning, rather\nthan whether the index would go up at any point during that year, as it\n\nterm. See Member of Congress\xe2\x80\x94Appointment to Office, 21 Op. Att\xe2\x80\x99y Gen. 211 (1895).\nHowever, the efficacy of rollback legislation was not at issue.\n4 A number of scholars who testified in 1973 on the proposed rollback legislation\nreached the same conclusion as the 1987 opinion. See, e.g., To Reduce the Compensation\nof 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.\nMishkin, and William D. Lorenson). Other commentators have taken the same view. See,\ne.g., 1 Westel Woodbury Willoughby, The Constitutional Law of the United States 607\n(1929); Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907\n(1994).\n\n205\n\n\x0c33 Op. O.L.C. 201 (2009)\n\ninevitably would on numerous occasions every day. Congressman Marlin\nOlmsted made this point in the debates relating to Senator Knox, noting\nthat:\neven the letter [of the Ineligibility Clause], fairly interpreted, would\nnot apply to this case. After this act is passed it can not be said that\nthe salary of the Secretary of State has been increased, for the salary\nwill then be precisely the same as it had existed for many years prior\nto the senatorial term which any member of that body was serving in\n1907 [when the act to be rolled back was passed].\n43 Cong. Rec. 2411 (1909).\nThis reading also accords with the usage of the word \xe2\x80\x9cincreased\xe2\x80\x9d\naround the period in which the Clause was enacted. For example, in a\nreport to Congress shortly after the founding, an organization of manufacturers noted that \xe2\x80\x9c[t]he value of goods manufactured in the United States\n. . . amounted, as early as 1810, to upwards of one hundred and seventytwo millions of dollars, which value was very greatly increased during the\nlate war.\xe2\x80\x9d 36 Annals of Cong. 2288 (1819). Such an observation cannot be\nunderstood to mean that at one time during the period concerned the value\nof the goods had increased, but that the value had returned to its original,\nlower level by the time of the statement. See also, e.g., Alexander Hay,\nThe History of Chichester 574 (West Sussex Co. & Dioscesan Record\nOffice 1804) (noting that \xe2\x80\x9c[t]here is no reason to doubt the accuracy of the\nsurvey of 1801, unless it should be suspected that it . . . was taken at the\ndesire of the ministery . . . that the population of the kingdom should\nappear increased, and not diminished, after a long destructive war\xe2\x80\x9d).\nWe need not conclude, however, that the \xe2\x80\x9con net\xe2\x80\x9d interpretation is, as a\nmatter of the plain language, superior to the \xe2\x80\x9csnapshot\xe2\x80\x9d interpretation.\nThe possibility of these two reasonable constructions shows that, at a\nminimum, there is no definitive \xe2\x80\x9cplain meaning\xe2\x80\x9d of the Ineligibility\nClause and thus that the text standing alone is ambiguous. Therefore, we\nmust look to evidence of the understandings of the drafters and ratifiers of\nthe Constitution, the purposes of the Clause, and the practice of the political branches in construing and applying that Clause. 5\n5 In concluding that Senator Kirkwood was ineligible to be appointed to the office of\ntariff commissioner, an opinion of Attorney General Benjamin Harris Brewster stated that\n\xe2\x80\x9c[i]t is unnecessary to consider the question of policy which occasioned this constitutional\n\n206\n\n\x0cStatutory Rollback of Salary to Permit Appointment of Member of Congress\n\nIII.\nIn his treatise on the Constitution, Joseph Story wrote that:\n[t]he reasons for excluding persons from offices, who have been\nconcerned in creating them, or increasing their emoluments, are, to\ntake away, as far as possible, any improper bias in the vote of the\nrepresentative, and to secure to the constituents some solemn pledge\nof his disinterestedness. The actual provision, however, does not go\nto the extent of the principle; for his appointment is restricted only\n\xe2\x80\x98during the time, for which he was elected;\xe2\x80\x99 thus leaving in full force\nevery influence upon his mind, if the period of his election is short,\nor the duration of it is approaching its natural termination.\nJoseph Story, Commentaries on the Constitution of the United States\n\xc2\xa7 440, at 311 (Ronald D. Rotunda & John E. Nowak eds., 1987). In other\nwords, Justice Story did not read the Clause as if it were intended to\nprevent members of Congress from receiving Executive Branch appointments. Rather, he understood it to have been designed to guard against the\nparticular problems that the prospect of such executive appointments\nmight raise. This more qualified understanding of the Clause\xe2\x80\x99s purpose\nfinds support in the debates at the Constitutional Convention, and we\nbelieve it supplies the correct basis for construing the Ineligibility Clause\nand applying its restriction on conferring \xe2\x80\x9cemoluments\xe2\x80\x9d to the issue here.\nThe Convention considered a number of variations with respect to the\nIneligibility Clause. Under the earliest version, as set out in the Virginia\nPlan\xe2\x80\x99s fourth and fifth resolutions, members of Congress would have been\n\xe2\x80\x9cineligible to any office\xe2\x80\x9d under the authority of the United States during\ntheir term of election and for some time thereafter, whether or not the\noffice in question had been created, or its emoluments increased, during\nthe legislator\xe2\x80\x99s term. 1 The Records of the Federal Convention of 1787,\nat 20 (Max Farrand ed., rev. ed. 1966). In contrast, a proposal offered by\nNathaniel Ghorum of Massachusetts would have eliminated the Ineligibility Clause altogether. Id. at 375. This proposal reflected the concern\nprohibition.\xe2\x80\x9d Appointment to Civil Office, 17 Op. Att\xe2\x80\x99y Gen. 365, 366 (1882). Senator\nKirkwood, however, was barred from appointment under the Ineligibility Clause because\nthe office unquestionably was \xe2\x80\x9ccreated\xe2\x80\x9d during his term as Senator. Therefore, there was\nno ambiguity in the plain text giving rise to a need to examine the purposes behind the\nrestriction.\n\n207\n\n\x0c33 Op. O.L.C. 201 (2009)\n\nthat a bar on the appointment of members of Congress to other offices\nwould limit the number of capable persons who could serve in government. See id. at 376. For example, James Wilson stated that \xe2\x80\x9c[s]trong\nreasons must induce me to disqualify a good man from office,\xe2\x80\x9d id. at 379,\nand that \xe2\x80\x9cwe ought to hold forth every honorable inducement for men of\nabilities to enter the service of the public,\xe2\x80\x9d id. at 380. Alexander Hamilton\nmade the additional argument that the Executive would need the power to\nappoint Senators and Representatives to high office: \xe2\x80\x9cOur prevailing\npassions are ambition and interest,\xe2\x80\x9d Hamilton observed, and the executive\nmight have to \xe2\x80\x9cavail himself of those passions\xe2\x80\x9d to induce the legislature to\nact for \xe2\x80\x9cthe public good.\xe2\x80\x9d Id. at 381.\nBetween these two extremes\xe2\x80\x94one which would have established a categorical bar against any sitting member of Congress\xe2\x80\x99s appointment to\nExecutive office and another which would have placed no restrictions on\nsuch appointments at all\xe2\x80\x94James Madison argued for a \xe2\x80\x9cmiddle ground\nbetween an eligibility in all cases, and an absolute disqualification.\xe2\x80\x9d Id. at\n388. Although Madison opposed the severity of the Virginia Plan\xe2\x80\x99s provisions, he conceded that there were instances in which the appointment of\na member of Congress to another office would be undesirable. Without\nsome form of the Ineligibility Clause, \xe2\x80\x9cthere may be danger of creating\noffices or augmenting the stipends of those already created, in order to\ngratify some members if they were not excluded.\xe2\x80\x9d Id. at 380. Appointing\nmembers of Congress to newly created offices or to offices with recently\naugmented salaries \xe2\x80\x9cwere the evils most experienced,\xe2\x80\x9d and Madison\nsupposed that \xe2\x80\x9cif the door was shut agst. them, it might properly be left\nopen for the appointt. of members to other offices as an encouragmt. to\nthe Legislative service.\xe2\x80\x9d Id. at 386. The goal was for \xe2\x80\x9cthe national legislature to be as uncorrupt as possible.\xe2\x80\x9d Id. at 392.\nAlthough 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\xe2\x80\x99s middle position eventually\nprevailed. 2 id. at 492. The aim behind the Ineligibility Clause was thus to\nArticle VI, Section 9 of the draft Constitution made members of the House \xe2\x80\x9cineligible\nto, and incapable of holding any office under the authority of the United States\xe2\x80\x9d during\nthe term for which they have been elected. 2 The Records of the Federal Convention of\n1787 at 180. This version also made Senators \xe2\x80\x9cineligible to, and incapable of holding any\nsuch office for one year afterwards.\xe2\x80\x9d Id.\n6\n\n208\n\n\x0cStatutory Rollback of Salary to Permit Appointment of Member of Congress\n\ntake away the possibility that Congress would create offices or increase\nemoluments in order to \xe2\x80\x9cgratify\xe2\x80\x9d 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\nClause would ensure that the national legislature would be \xe2\x80\x9cas uncorrupt\nas possible.\xe2\x80\x9d 1 id. at 392.\nThis basic purpose, as reflected in the Clause\xe2\x80\x99s drafting history, helps\nto resolve the ambiguity in the text. It indicates that the phrase \xe2\x80\x9cshall have\nbeen encreased\xe2\x80\x9d should be construed to mean \xe2\x80\x9cshall have been encreased\non net\xe2\x80\x9d during the course of a Congress member\xe2\x80\x99s term. The alternative,\nsnapshot reading, while plausible linguistically, would result in the Clause\noperating as a nearly categorical bar to the appointment of members of\nCongress, given the likelihood of a salary increase during a member\xe2\x80\x99s\n(and particularly a Senator\xe2\x80\x99s) term. Such a broad bar to appointment,\nhowever, is what Madison and other delegates sought to avoid by adopting Madison\xe2\x80\x99s compromise position and rejecting the complete bar to\neligibility for members of Congress that had been proposed. Madison\xe2\x80\x99s\ncompromise position, and the version of the Clause ultimately adopted, to\nuse Justice Story\xe2\x80\x99s words, reflects the \xe2\x80\x9creasons for excluding persons\nfrom offices\xe2\x80\x9d rather than an intention to establish a restriction that would\nbe untethered to those specific reasons. As first Madison, and then Justice\nStory, explained, those reasons related to the concern that members of\nCongress would vote to establish new or higher paying offices to \xe2\x80\x9cgratify\xe2\x80\x9d\nthemselves as future officeholders rather than out of a disinterested judgment about the need for such legislation.\nThis understanding of the Clause\xe2\x80\x99s purpose reveals the superiority of\nthe \xe2\x80\x9con net\xe2\x80\x9d construction of the ambiguous textual phrase \xe2\x80\x9cshall have\nbeen encreased.\xe2\x80\x9d A member of Congress could hardly be said to be seeking to \xe2\x80\x9cgratify\xe2\x80\x9d himself in approving legislation to increase the salary of\nan office if he knew that the Clause would bar him from taking that office\nunless the salary had first been rolled back prior to his appointment. As\n7 During the ratification debates in Virginia, Madison explained that the Ineligibility\nClause \xe2\x80\x9cguards against abuse by taking away the inducement to create new offices, or\nincrease the emoluments of old offices.\xe2\x80\x9d 10 The Documentary History of the Ratification\nof the Constitution 1262 (John P. Kaminski & Gaspare J. Saladino eds., 1976\xe2\x80\x931993). But\nhe also noted that it would be \xe2\x80\x9cimpolitic to exclude from the service of his country, in any\noffice, the man who may be most capable of discharging its duties, when they are most\nwanting.\xe2\x80\x9d 3 The Records of the Federal Convention of 1787 at 315.\n\n209\n\n\x0c33 Op. O.L.C. 201 (2009)\n\nActing Attorney General Bork stated, \xe2\x80\x9cthe expectation of a higher salary\ncannot influence Senators\xe2\x80\x99 or Representatives\xe2\x80\x99 votes on legislation to\nraise salaries . . . if a Senator or Representative knows . . . that should he\never be nominated for [an office with a raised salary] during his term of\noffice, he will have to accept the lower salary.\xe2\x80\x9d Bork Statement at 11.\nThe allowance for rollback legislation, therefore, does not violate the\n\xe2\x80\x9cplain language\xe2\x80\x9d of the Clause, or otherwise frustrate its purposes, as our\n1987 opinion erroneously concluded. To the contrary, construing the\nClause to permit appointments following rollback legislation advances the\npurposes behind the Ineligibility Clause by \xe2\x80\x9cassur[ing] the appointment\neligibility of Members of Congress where there is no possibility of profit\nfrom offices created, or salaries increased, during the time for which they\nwere elected.\xe2\x80\x9d See To Reduce the Compensation of the Office of Attorney\nGeneral: Hearing on S. 2673 Before the S. Comm. on the Judiciary 51\n(1973) (Statement of William Van Alstyne) (\xe2\x80\x9cVan Alstyne Statement\xe2\x80\x9d).\nAs Senator Philip Hart said in the debates on the rollback legislation for\nWilliam Saxbe, such a law \xe2\x80\x9cwould not \xe2\x80\x98evade\xe2\x80\x99 the bar intended by the\nFramers; rather, it would implement it and maintain its effectiveness, both\nin the present instance and as a deterrent to log rolling or improper executive-legislative collaboration in the future.\xe2\x80\x9d 119 Cong. Rec. 38,346\n(1973). Thus, he continued,\nrather than saying [the law] permits evasion of the constitutional\nprovision, it is more correct to say the ban has here served its purpose. It has forced a statute denying any benefit, and without the\nstatute the ban would prevent the appointment. If the purpose can\nthus be accomplished, to do more would do violence to the other\ncompeting consideration in the original compromise: namely, Madison\xe2\x80\x99s concern that good men not be precluded from executive service for existing posts.\nId. at 38,347. 8 See also Dixon Statement at 71, 81 (\xe2\x80\x9cA major purpose of\nthe Ineligibility Clause . . . was the prevention of the evils which would\n\nAs 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\xe2\x80\x9c[n]o person . . . shall be compelled to be a witness against himself in any criminal case.\xe2\x80\x9d\nTestimony may be compelled, however, if the witness is granted immunity, so that the\ntestimony cannot be used against him. 18 U.S.C. \xc2\xa7 6002 (2006); Kastigar v. United\n8\n\n210\n\n\x0cStatutory Rollback of Salary to Permit Appointment of Member of Congress\n\narise if legislators could benefit from the creation of new offices or increase in the emoluments of existing ones . . . . S. 2673 would overcome\nthe former evil regarding emoluments by preventing Senator Saxbe from\nobtaining the benefit of the 1969 salary increase.\xe2\x80\x9d). Senator Olmstead, in\ndefending the constitutional efficacy of the rollback legislation proposed\nto permit the appointment of Senator Knox, expressed the similar view\nthat such proposed legislation \xe2\x80\x9cif enacted will be not an evasion of, but in\ncompliance with [the Ineligibility Clause].\xe2\x80\x9d 43 Cong. Rec. 2410 (1909). 9\nSome commentators favoring the \xe2\x80\x9csnapshot\xe2\x80\x9d interpretation have argued\nthat, contrary to Justice Story\xe2\x80\x99s view, the predominant purpose of the\nIneligibility Clause was \xe2\x80\x9cto protect against legislative corruption by the\nexecutive\xe2\x80\x99s appointment power\xe2\x80\x9d and \xe2\x80\x9cto prevent the offering of high\nposition as an inducement to legislators.\xe2\x80\x9d See Daniel H. Pollitt, Senator/Attorney-General Saxbe and the \xe2\x80\x9cIneligibility Clause\xe2\x80\x9d of the Constitution: An Encroachment Upon Separation of Powers, 53 N.C. L. Rev.\n111, 122\xe2\x80\x9323 (1974); Comment, The Ineligibility Clause: An Historical\nApproach to Its Interpretation and Application, 14 John Marshall L. Rev.\n819, 824 n.31, 828 (1981). But see John F. O\xe2\x80\x99Connor, The Emoluments\nClause: An Anti-Federalist Intruder in a Federalist Constitution, 24\nHofstra L. Rev. 89, 164, 172\xe2\x80\x9373 (1995) (arguing that the Framers did not\nview this as the central purpose of the Clause). Assistant Attorney General Dixon recognized this as a purpose of the Clause in testifying before\nCongress on the rollback bill introduced to permit the appointment of\nSenator Saxbe as Attorney General, see Dixon Statement at 70, and our\n1987 opinion recognizes it as well, see Cooper Memorandum at 6.\n\nStates, 406 U.S. 441 (1972). The federal immunity statute is not an \xe2\x80\x9cevasion\xe2\x80\x9d of the Fifth\nAmendment. Rather, it respects the constitutional command.\n9 It might be argued that the text of the Ineligibility Clause precludes the effectiveness\nof rollback legislation, because it does not expressly permit Congress to make exceptions,\nin contrast with other constitutional provisions. For example, the Emoluments Clause\nstates that \xe2\x80\x9cno Person holding any Office or Profit or Trust under them, shall, without the\nConsent of the Congress, accept of any present, Emolument, Office or Title, of any kind\nwhatever, from any King, Prince, or foreign State.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 9, cl. 8. Rollback\nlegislation, however, is not an exception to the Clause, but rather a means for ensuring\nthat the facts that would trigger the bar are not in place. Rollback legislation is thus more\nanalogous to situations in which the Emoluments Clause would not apply at all, such as\nwhen the gift comes from a foreign jurisdiction after Congress has incorporated it into the\nUnited States.\n\n211\n\n\x0c33 Op. O.L.C. 201 (2009)\n\nThis alternative account of the purpose of the Clause does not, however, favor the \xe2\x80\x9csnapshot\xe2\x80\x9d interpretation, and thus it does not cast doubt on\nthe constitutional effectiveness of rollback legislation. Even if one understands a concern about undue executive pressure on the legislature to have\ninfluenced the delegates to the Constitutional Convention in negotiating\nthe Clause, the \xe2\x80\x9con net\xe2\x80\x9d construction of \xe2\x80\x9cshall have been encreased\xe2\x80\x9d is\nstill the superior reading. Although there is some support in the history of\nthe Constitutional Convention for the view that the drafters of the Ineligibility Clause had a concern about improper executive influence through\nthe appointment power, the text of the Clause shows that this concern was\nnot its overriding and unqualified purpose. By its terms, the Clause does\nnot prohibit the President from appointing a sitting member of Congress\nto an Executive Branch office. The delegates rejected the Virginia Plan,\nwhich would have done so. In that regard, the Clause could not have been\ndesigned to root out any possible Executive Branch use of the appointment power to influence members of Congress. Indeed, in forging his\ncompromise, Madison was clear in not seeking to impose such a draconian rule. See Van Alstyne Statement at 53 (\xe2\x80\x9c[N]ot to recognize the efficacy\nof [rollback legislation] . . . would itself offend one of the reasons that\naccounted for the final form of [the Ineligibility Clause]: to assure the\neligibility 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\nCongress during [their] term.\xe2\x80\x9d).\nThe issue, then, is whether the \xe2\x80\x9csnapshot\xe2\x80\x9d interpretation of \xe2\x80\x9cshall have\nbeen encreased\xe2\x80\x9d would appreciably guard against the corrupting influence\nof executive appointments, even though the Clause poses no general bar\nto the Executive offering them as inducements. We do not see how it\nwould. A construction of the Clause that would permit rollback legislation\nwould seem well-designed to check the Executive from unduly influencing congressional members with the prospect of attractive appointments,\ngiven that appointments in general are not prohibited. Any tangential\neffect that the increase in the pay of an office might otherwise have on the\nPresident\xe2\x80\x99s ability to influence Congress by promising appointment to\nsuch office would be negated by the expectation of the enactment of\nrollback legislation. Thus, as with the desire to avoid self-dealing by the\nlegislature, conceding the efficacy of rollback legislation would comport\nwith this purpose of the Ineligibility Clause. See Dixon Statement at 71\n212\n\n\x0cStatutory Rollback of Salary to Permit Appointment of Member of Congress\n\n(\xe2\x80\x9cS. 2673 would overcome the . . . evil regarding emoluments by preventing Senator Saxbe from obtaining the benefit of the 1969 salary increase\nand any other emoluments, without wastefully barring him from offering\nhis services to the country in an appointive office.\xe2\x80\x9d). Or at least, the\npossibility of corrupting influence would exist only insofar as it would\nexist in the absence of the Ineligibility Clause altogether: by its terms, the\nIneligibility Clause does not prevent Congress and the President from\ncolluding to make a deal in which the President would appoint a congressional member to an office (the salary of which had never been raised\nduring the relevant period) and Congress would later raise the salary of\nthat office. See Mikva I, 3 Op. O.L.C. at 288; Member of Congress\xe2\x80\x94\nAppointment to Civil Office Prior to Pay Increase, 42 Op. Att\xe2\x80\x99y Gen. 381\n(1969) (concluding that subsequent increase in the emoluments of an\noffice would not disqualify a member from appointment to that office).\nWe thus disagree with the 1987 opinion\xe2\x80\x99s assertion that conceding the\nefficacy of rollback legislation would \xe2\x80\x9cserve[] to frustrate the intentions\nof the Framers.\xe2\x80\x9d Cooper Memorandum at 6.\nFinally, it has been argued that the Framers intended the Ineligibility\nClause 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\xe2\x80\x99Connor, Emoluments Clause, 24 Hofstra L. Rev. at 164,\n170\xe2\x80\x9371. According to this argument, if rollback legislation is ineffective,\nCongress will be less likely to increase the pay of offices in the first\ninstance, because its members will want to maintain their eligibility for\nappointment; as a result, the purpose of economy will be advanced more\ncompletely than if a rollback were effective. Id. at 170\xe2\x80\x9371. This argument,\nwe believe, is mistaken and cannot be reconciled with the text of the\nIneligibility Clause. It would find in the Ineligibility Clause a purpose to\nrestrict the pay of all offices, including those filled by persons who are not\nappointed from the Congress after a salary increase and thus are not\nmentioned in the Ineligibility Clause. If that were the intended function of\nthe Clause, however, it would not have been drafted in so limited a manner. To the extent the debates in the Constitutional Convention considered\nthe relationship of the Ineligibility Clause to the size of the federal government, the delegates tied that concern to the increases that would result\nfrom allowing members of Congress to create, or raise the pay of, offices\nthey would themselves then occupy. See, e.g., 1 The Records of the Federal Convention of 1787 at 380 (Mason) (cautioning that, without the\n213\n\n\x0c33 Op. O.L.C. 201 (2009)\n\nIneligibility Clause, members of Congress \xe2\x80\x9cmay make or multiply offices,\nin order to fill them\xe2\x80\x9d); see also id. at 387 (Mason) (referring to the Virginia legislature\xe2\x80\x99s \xe2\x80\x9cpartiality . . . to its own members\xe2\x80\x9d); id. at 388 (Elbridge\nGerry) (members will care more about themselves than their relatives and\nfriends); id. at 392 (Madison) (all \xe2\x80\x9cpublic bodies\xe2\x80\x9d are inclined to support\ntheir own members).\nOur construction depends on the judgment that rollback legislation suffices to further the Clause\xe2\x80\x99s underlying purposes, but those who take the\nother side of this question have contested that judgment. They contend\nthat, even with rollback legislation, the purposes of the Ineligibility\nClause are not fulfilled. They raise three arguments along these lines.\nThe first argument is that \xe2\x80\x9can office for which Congress has once voted\na pay increase has been made more attractive . . . even if Congress passes\nremedial legislation,\xe2\x80\x9d because \xe2\x80\x9cin such a case Congress is infinitely more\nlikely to revote the pay increase as soon as the [member\xe2\x80\x99s] disqualification expires than if Congress had never voted a pay increase for the\noffice.\xe2\x80\x9d 119 Cong. Rec. 38,331 (1973) (letter from then-Professor Stephen\nG. Breyer). This argument is arguably supported by some practice. Setting\naside 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\nrestored salary. Philander Knox\xe2\x80\x99s term as Senator would have ended in\n1911; subsequently, in 1912, his previously rolled-back salary as Secretary of State was increased, see Pub. L. No. 62-299, 37 Stat. 360, 372\n(1912), and he enjoyed that benefit until he resigned in 1913. The bill\nrolling back the salary in the case of Representative Casey provided for a\nsalary increase to the pre-rollback position at the end of what would have\nbeen his congressional term or upon the appointment of a successor to his\nexecutive office, whichever was earlier. Pub. L. No. 94-195, \xc2\xa7 1(b), 89\nStat. 1108 (1975). His term would have ended in January 1977, yet he\nremained 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\n\n10 The legislation affecting Senator Muskie also included such a provision. Pub. L. No.\n96-241, \xc2\xa7 1(b), 94 Stat. 343 (1980). But Secretary of State Muskie resigned before the\nterm for which he had been elected Senator would have ended.\n\n214\n\n\x0cStatutory Rollback of Salary to Permit Appointment of Member of Congress\n\nDespite the force of this argument, at the time Congress first acts to\nincrease the salary of the federal office, that higher level of pay remains a\n\xe2\x80\x9cconjectural reward[] a nominee may enjoy after his [congressional] term\nexpires.\xe2\x80\x9d 119 Cong. Rec. 38,347 (1973) (statement of Senator Hart, arguing that weighing such rewards goes beyond the bounds drawn by the\nFramers); cf. Applicability of Ineligibility Clause to Appointment of Congressman Tony P. Hall, 26 Op. O.L.C. 40, 42\xe2\x80\x9343 (2002) (noting, with\nrespect 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 \xe2\x80\x9carguably might lead to some expectations about the\nsalary to be paid [to the subsequent appointee] . . . this expectation is, in\nthe end, a matter of speculation\xe2\x80\x9d and \xe2\x80\x9c[u]ntil the President [] or his delegate acts, there are no emoluments attached to the office in question\xe2\x80\x9d). At\nthe time of a salary increase, it cannot be known whether Congress in the\nfuture, if it rolls back the increase, will also provide for its restoration or\nwhether the prospective appointee will still occupy the executive office at\nthe time that any such restoration takes effect. In three of the five historical cases of individual rollbacks, the appointees never drew a restored\nsalary. Attorney General Saxbe\xe2\x80\x99s term would have ended in January 1975;\nhe resigned in February 1975; and later that month Congress restored the\nAttorney General\xe2\x80\x99s salary, retroactively to the day after Mr. Saxbe\xe2\x80\x99s\nresignation. 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\nhad been elected Senator would have ended. Treasury Secretary Bentsen\nresigned in 1994, shortly after the end of the term for which he had been\nelected Senator. Congress did not restore the salary for the office of\nSecretary of the Treasury until 1997. Pub. L. No. 105-61, \xc2\xa7 116, 111 Stat.\n1272, 1284 (1997). The possibility that an officer appointed after a salary\nrollback will ever receive the higher salary is speculative. At the very\nleast, there is no practice, as far as we have been able to determine, of\nCongress\xe2\x80\x99s immediately increasing salaries after a rollback, as thenProfessor Breyer conjectured.\nThe second argument contends that, whether or not the fact of an increase during a member\xe2\x80\x99s term makes a post-appointment increase more\nlikely, the current Congress, through a post-appointment enactment, might\nimmediately restore the rolled-back salary of the position after the member of Congress is appointed. The 1987 opinion states: \xe2\x80\x9cCongress could in\nall cases reduce the salary of the congressman on the day before he is\n215\n\n\x0c33 Op. O.L.C. 201 (2009)\n\nnominated and restore it to its increased level on the day after he is commissioned.\xe2\x80\x9d Cooper Memorandum at 6. As explained above, it does not\nappear that Congress has ever taken such a step. Nevertheless, according\nto this argument, the mere possibility that Congress might restore the\nsalary as of the day after commissioning demonstrates the invalidity of the\nrationale on which rollback legislation is based.\nThis argument has prompted a range of responses. Acting Attorney\nGeneral Bork said that he \xe2\x80\x9cwould like to address that question at that\ntime, if things fall out that way.\xe2\x80\x9d Bork Statement at 12. Professor Van\nAlstyne took the position that the former member could not accept a\nsalary increase enacted by the same Congress that voted a rollback. Van\nAlstyne Statement at 53. Assistant Attorney General Scalia thought that,\nalthough the matter was not free from doubt, a post-appointment enactment restoring the salary would be constitutional and could be accepted\nby the former member. Memorandum for Hugh M. Durham, Chief, Office\nof Legislative Affairs, from Antonin Scalia, Assistant Attorney General,\nOffice of Legal Counsel, Re: Proposed Bill to Increase the Salary of the\nAttorney General at 3 (Nov. 22, 1974) (\xe2\x80\x9cScalia Memorandum\xe2\x80\x9d).\nWe agree with Acting Attorney General Bork\xe2\x80\x99s approach: there is no\nneed to deal with this issue until Congress actually seeks to restore a\nrolled-back salary immediately upon an appointee\xe2\x80\x99s taking office. We\nonly note that, even if Congress did take such action, it would not necessarily be inconsistent with the purposes behind the Ineligibility Clause.\nThe former member, no longer being in Congress, might have lost much\nof his power to influence congressional action. Thus, a salary restoration\nenactment after his appointment to office might not be a subterfuge by\nwhich the constitutional restraint against self-dealing would be avoided.\nLikewise, post-appointment legislation restoring the salary of an office to\nits pre-rollback level would not promote the ability of the Executive\ncorruptly to wield influence over the Legislative Branch insofar as the\nappointment 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\nexecutive influence over prospective appointees in Congress. Accordingly, the possibility of the repeal of the salary rollback, in itself, is not a\ngood reason for abandoning the view that a salary rollback achieves\ncompliance with the Ineligibility Clause.\n216\n\n\x0cStatutory Rollback of Salary to Permit Appointment of Member of Congress\n\nThe third and final argument is that \xe2\x80\x9cthe purpose of the provision is to\nprevent Congress from [passing] special legislation for the benefit of one\nof its own Members\xe2\x80\x9d and that a rollback statute \xe2\x80\x9cwould have no function\nor purpose except to qualify a particular member of . . . Congress for an\noffice for which he could not otherwise qualify.\xe2\x80\x9d To Reduce the Compensation of the Office of Attorney General: Hearing on S. 2673 Before the\nS. Comm. on the Judiciary, 93d Cong. 6 (1973) (statement of Professor\nPhilip Kurland). Unlike the first two arguments, this one attacks the\nconstitutionality of the rollback legislation itself, rather than the subsequent appointment. 11 In precisely this respect, however, the argument\ndoes not square with the language of the Ineligibility Clause. By its terms,\nthe Clause does not address any legislation, whether for the benefit of a\nparticular congressional member or for the benefit of a more general\nclass. Instead, it forbids appointment to civil office. See Scalia Memorandum at 4. This argument, therefore, does not convincingly answer the case\nin favor of the effectiveness of rollback legislation.\nIV.\nOur 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,\nas well as administrations of both parties, have affirmed that salary rollbacks achieve compliance with the Ineligibility Clause.\nOn at least seven occasions since the Civil War, Congress has rolled\nback 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.\nFirst, in 1876, while Senator Lot M. Morrill was serving a term that had\nbegun in 1871, he was nominated, confirmed, and appointed as Secretary\nof the Treasury. Congress had raised cabinet members\xe2\x80\x99 salaries from\n$8,000 to $10,000 in 1873 and then, in an effort at fiscal retrenchment,\n\nProfessor Van Alstyne\xe2\x80\x99s answer to the second objection\xe2\x80\x94that a statute to restore an\nappointee\xe2\x80\x99s salary before the end of the term for which he had been elected would be\nunconstitutional\xe2\x80\x94is similar to the third objection in the sense that it asserts the unconstitutionality of legislation, rather than of an appointment.\n11\n\n217\n\n\x0c33 Op. O.L.C. 201 (2009)\n\nhad returned the salaries in 1874 to their previous level. Act of Mar. 3,\n1873, ch. 226, 17 Stat. 485, 486 (1873); Act of Jan. 20, 1874, ch. 11, 18\nStat. 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,\nin 1909, Congress reduced the salary of the Secretary of State so that\nSenator Philander Knox could be appointed to the office. During Knox\xe2\x80\x99s\nterm in the Senate, Congress had raised the salary of cabinet positions\nfrom $8,000 to $12,000. Pub. L. No. 59-129, 34 Stat. 935, 948 (1907).\nWhen President Taft announced his intention to nominate Knox, Congress\nreduced the Secretary of State\xe2\x80\x99s salary to $8,000, Pub. L. No. 60-235, 35\nStat. 626 (1909), and Knox was then confirmed and appointed. Third, in\n1973, Congress reduced the Attorney General\xe2\x80\x99s salary from $60,000 to\n$35,000, thus rolling back a raise that had become effective during William Saxbe\xe2\x80\x99s term in the Senate. Pub. L. No. 93-178, 87 Stat. 697 (1973).\nFourth, at the request of Attorney General Edward H. Levi, Congress in\n1975 reduced the salary of a position as Federal Maritime Commissioner,\nin order to permit Congressman Robert Casey to be appointed, and Casey\nwas confirmed and appointed to that position. Pub. L. No. 94-195, 89 Stat.\n1108 (1975); 121 Cong. Rec. 40,811 (1975). Fifth, in 1980, Congress\nrolled back the salary of the Secretary of State to permit Senator Edmund\nMuskie to be appointed. Pub. L. No. 96-241, 94 Stat. 343 (1980). Sixth, in\n1993, a salary rollback for the Secretary of the Treasury enabled Senator\nLloyd Bentsen to be appointed. Pub. L. No. 103-2, 107 Stat. 4 (1993). The\nbill was signed by President George H.W. Bush, without any mention of\na constitutional concern. 2 Pub. Papers of Pres. George Bush app. D, at\n2323 (1992\xe2\x80\x9393). Finally, Congress passed legislation, signed by President\nGeorge W. Bush, rolling back the salary for the Secretaries of State and\nthe Interior in order to permit the appointment of Senators Hillary Clinton\nand Ken Salazar to those respective offices by President Obama once he\nassumed 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\n(2009) (concerning emoluments of Secretary of the Interior). 12\n12 The Ineligibility Clause was also at issue when President Roosevelt nominated\nSenator Hugo Black to the Supreme Court. Note, Courts\xe2\x80\x94Legality of Justice Black\xe2\x80\x99s\nAppointment to Supreme Court, 37 Colum. L. Rev. 1212 (1937). The Senate, in passing\n\n218\n\n\x0cStatutory Rollback of Salary to Permit Appointment of Member of Congress\n\nOn two of these occasions, Congress thoroughly debated the constitutional issues before approving the rollback legislation. In 1909, the bill to\nreduce the salary of the Secretary of State prompted a full debate in the\nHouse of Representatives, during which opponents of the measure argued\nfor its defeat on the ground that it would not bring Senator Knox\xe2\x80\x99s prospective appointment into conformity with the Ineligibility Clause. See\nH.R. Rep. No. 2155, at 2\xe2\x80\x933 (1909) (Views of the Minority); 43 Cong.\nRec. 2390\xe2\x80\x932402, 2410\xe2\x80\x932415 (1909). Eventually, Congress voted to pass\nthe rollback legislation, and it was signed by President Taft. Again in\n1973, when the bill to roll back the Attorney General\xe2\x80\x99s salary was under\nconsideration, the Post Office and Civil Service Committee and the Judiciary Committee of the Senate held hearings on the constitutional issues,\nand the Senate debated those issues at length. Office of the Attorney\nGeneral: Hearing on S. 2673 Before the S. Comm. on Post Office and\nCivil Service, 93d Cong. (1973); To Reduce the Compensation of the\nOffice of Attorney General: Hearing on S. 2673 Before the S. Comm. on\nthe Judiciary, 93d Cong. (1973); 119 Cong. Rec. 36,484\xe2\x80\x9336,485, 38,315\xe2\x80\x93\n38,349 (1973). After this deliberation, Congress passed the bill, Pub. L.\n\nthe Retirement Act of 1937, had increased the retirement pay of Justices. Pub. L. No. 10,\n75 Stat. 24 (1937). It was argued at the time that there had been no increased emolument\nas to Justice Black because he would not have become eligible for retirement unless he\nserved for almost 20 years on the Court. Edward S. Corwin, The President: Office and\nPower, 1787\xe2\x80\x931957, at 72\xe2\x80\x9373 (4th rev. ed. 1957); see also State ex rel. Todd v. Reeves, 82\nP.2d 173 (Wash. 1938) (contemporaneous case reaching conclusion that retirement\nbenefits are not \xe2\x80\x9cemoluments\xe2\x80\x9d under state constitution); cf. President Reagan\xe2\x80\x99s Ability to\nReceive Retirement Benefits from the State of California, 5 Op. O.L.C. 187 (1981)\n(California retirement benefits are not \xe2\x80\x9cemoluments\xe2\x80\x9d within the constitutional provision\nbarring the President from receiving \xe2\x80\x9cemoluments\xe2\x80\x9d from any state); The Honorable\nGeorge J. Mitchell, United States Senate, B-207,467, 1983 WL 27823 (Comp. Gen.)\n(Jan. 18) (same). After Senator Black was confirmed and took office, the Supreme Court\ndismissed, for lack of standing, a challenge to his authority as Justice. Ex parte Levitt, 302\nU.S. 633 (1937). The Black nomination did not involve any issue of rollback legislation.\nSimilarly, when Representative Abner Mikva was nominated to the United States Court of\nAppeals for the District of Columbia Circuit, opponents argued that his appointment was\nbarred by a pay increase that might have gone into effect after his confirmation. Our\nOffice concluded that it was uncertain whether the salary increase would take place and\nthus that the Ineligibility Clause would not forbid the appointment, Mikva I, 3 Op. O.L.C.\nat 289, and a challenge to Judge Mikva\xe2\x80\x99s appointment was dismissed on standing grounds.\nSee McClure v. Carter, 513 F. Supp. 265 (D. Idaho), aff\xe2\x80\x99d sub nom. McClure v. Reagan,\n454 U.S. 1025 (1981). Again, no issue of a rollback was involved.\n\n219\n\n\x0c33 Op. O.L.C. 201 (2009)\n\nNo. 93-178, 87 Stat. 697 (1973), President Nixon signed it without constitutional objection, and Congress subsequently confirmed Senator Saxbe as\nAttorney General.\nAccordingly, the practice of the political branches, over more than a\ncentury and after serious deliberation, supports the effectiveness of rollback legislation to achieve compliance with the Ineligibility Clause. As\nChief Justice John Marshall wrote in McCulloch v. Maryland, 17 U.S.\n(4 Wheat.) 315 (1819), where \xe2\x80\x9cthe great principles of liberty are not\nconcerned,\xe2\x80\x9d any doubtful question, \xe2\x80\x9cif not put at rest by the practice of the\ngovernment, ought to receive a considerable impression from that practice.\xe2\x80\x9d Id. at 401. 13\nV.\nFor these reasons, we believe that, where a salary increase for an office\nwould otherwise create a bar to appointment of a member of Congress\nunder the Ineligibility Clause, compliance with the Clause can be\nachieved by legislation rolling back the salary of the executive office\nbefore the appointment.\nDAVID J. BARRON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n13 Although the Presidents and Congresses passing rollback legislation could be seen as\nthe parties that the Ineligibility Clause was meant to restrain, and thus it could be argued\nthat their practice is not entitled to much weight, such an argument would overlook that\nPresidents, Senators, and Representatives all swear an oath pledging support for the\nConstitution, U.S. Const. art. VI, cl. 3, and should be presumed to take this oath seriously.\nTheir long-standing practice may not be conclusive, but surely it merits respect.\n\n220\n\n\x0c'


b"Dual Office of Chief Judge of Court\nof Veterans Appeals and Director of the\nOffice of Government Ethics\nFederal law does not bar a single individual from serving simultaneously as the Chief Judge\nof the Court of Veterans Appeals and the Director of the Office of Government Ethics.\n\nJuly 21, 1989\nM e m o r a n d u m O p in io n f o r t h e D ir e c t o r\nO f f ic e o f G o v e r n m e n t E t h ic s\n\nThis responds to your request for the opinion o f this Office whether\nyou can serve simultaneously as the Director o f the Office o f Government\nEthics and Chief Judge o f the Court o f Veterans Appeals. For the reasons\nset forth below, we conclude that you are not barred by federal law from\nholding both offices, since (we understand) you will receive only a single\nsalary, the two positions are not incompatible, and no appropriation is\nbeing directed to any purpose other than that provided by law.1\n\nBackground\nThe Court o f Veterans Appeals was created by section 301 o f the\nVeterans\xe2\x80\x99 Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105, 4113,\ncodified at 38 U.S.C. \xc2\xa7\xc2\xa7 4051-4092. The court operates under Article I o f\nthe Constitution, and has exclusive jurisdiction to review decisions o f the\nBoard o f Veterans Appeals. 38 U.S.C. \xc2\xa7 4052(a). The court consists o f a\nChief Judge and from two to six associate judges, who are each to serve\nterms o f 15 years. Id. \xc2\xa7 4053. The President has recently appointed Judge\nNebeker to be the Chief Judge o f this court.\nJudge Nebeker is also the Director o f the Office o f Government Ethics\n( \xe2\x80\x9cOGE\xe2\x80\x9d). The OGE \xe2\x80\x9cwas established within the Office o f Personnel\nManagement ( \xe2\x80\x9cOPM\xe2\x80\x9d) by title IV o f the Ethics in Government Act of 1978.\nThe Office was created to \xe2\x80\x98provide overall direction o f executive branch\npolicies related to preventing conflicts o f interest on the part o f officers and\n1\n\nYou have not requested our view s on the appropriateness under the American Bar Association Code\n\no f Judicial Conduct (1972) o f your serving simultaneously in these tw o positions, and w e do not address\nthe issue.\n\n241\n\n\x0cemployees o f any executive agency.\xe2\x80\x99 The OGE Director was given the\nauthority and responsibility for developing rules and regulations regarding\nconflicts o f interest, financial disclosure and ethical conduct by officers and\nemployees in the executive branch; monitoring and investigating individual\nand agency compliance with financial disclosure requirements; interpreting\nconflict o f interest rules and regulations; providing information on and pro\xc2\xad\nmoting understanding o f ethical standards in executive agencies; and order\xc2\xad\ning action by agencies and employees to comply with laws, rules, regula\xc2\xad\ntions and standards related to conflicts o f interest and ethical conduct.\xe2\x80\x9d\nH.R. Rep. No. 1017, 100th Cong., 2d Sess., pt. 1, at 8-9 (1988), reprinted in\n1988 U.S.C.C.A.N. 4125, 4129-30. Under sections 3(a) and 10(b) of Office of\nGovernment Ethics: Reauthorization Act o f November 3, 1988, Pub. L. No.\n100-598, 102 Stat. 3031, OGE is to be removed from OPM and to be a sepa\xc2\xad\nrate executive agency, effective October 1, 1989.\nWe understand that Judge Nebeker will not be involved in adjudicating\nany cases before the Court o f Veterans Appeals for some time after\nassuming his position there, and that his duties at the outset o f his tenure\nwill be largely or entirely administrative. We also understand that Judge\nNebeker will have resigned from the Directorship o f OGE before he\nbegins to hear cases on the court. During the overlapping period in which\nhe plans to serve both as Director o f OGE and as Chief Judge, we under\xc2\xad\nstand that Judge Nebeker will draw a salary only as Chief Judge, which is\nthe higher-paid o f the two positions.\nA. Dual Compensation\n\nThe Dual Compensation Act, 5 U.S.C. \xc2\xa7 5533, repealed earlier legisla\xc2\xad\ntion directed against dual office holdings and provides that, subject to\nexceptions, \xe2\x80\x9can individual is not entitled to receive basic pay from more\nthan one position for more than an aggregate o f 40 hours o f work in one\ncalendar week (Sunday through Saturday).\xe2\x80\x9d The Act merely prohibits the\nreceipt o f pay for more than one full-time dual government position (sub\xc2\xad\nject to certain exceptions). Accordingly, this Office has repeatedly opined\nthat the Dual Compensation A ct does not prohibit the holding o f two\noffices simultaneously, and in fact impliedly permits it.2 \xe2\x80\x9cThe basic prin\xc2\xad\n2See, e g., Memorandum fo r Arnold Intrater, General Counsel, O ffice o f White House Administration,\nfrom John O. McGinms, Deputy Assistant A ttorney General, Office o f Legal Counsel, Re- Dual Office o f\nE x e c u tive Secretary o f N a tio n a l Security C ouncil and Special Assistant (Mar\n\n1, 1988) ( \xe2\x80\x9cIntrater\n\nMem orandum \xe2\x80\x9d), Memorandum for Myer Feldman, Special Counsel to the President, from Norbert A.\nSchlei, Assistant Attorney General, Office o f Legal Counsel, R e \xe2\x80\xa2 F ix in g o f Salary o f D irector o f Office o f\nE c o n o m ic O p p ortu n ity (Aug. 19, 1964) (dual appointment as Director o f the Peace Corps and Director\n\no f the O ffice o f Econom ic Opportunity). A pproved dual appointments also include cases in which a job\nwas created by statute and was subject to Senate advice and consent (as is the job o f Chief Judge o f the\nCourt o f Veterans Appeals). See Memorandum for G eorge P. Williams, Associate Counsel to the\nPresident, from Leon Ulman, Acting Assistant Attorney General, O ffice o f Legal Counsel, Re. Dual\nA p p o in tm e n t (June 24, 1974) (Special Representative fo r 'IYade Negotiations and Executive Director o f\n\nthe Council on International Economic P o licy )\n\n242\n\n\x0cciple is that there is no longer any prohibition against dual office-holding.\nIt seems to us that it is not material how the dual tenure comes about,\nwhether by successive appointments by and with the advice and consent\no f the Senate, by interim designation, or by concurrent nomination and\nappointment.\xe2\x80\x9d Memorandum for John D. Ehrlichman, Counsel to the\nPresident, from William H. Rehnquist, Assistant Attorney General, Office\nof Legal Counsel at 2 (Feb. 13, 1969). Thus, the statute is not a bar to\nJudge Nebeker\xe2\x80\x99s serving in the two capacities o f Chief Judge o f the Court\no f Veterans Appeals and Director o f OGE, so long as he receives only one\nsalary for the work he performs.3\nB. Incompatibility\n\nWhere public policy would make it improper for one person to perform\nthe functions assigned to two distinct offices, a problem o f \xe2\x80\x9cincompati\xc2\xad\nbility\xe2\x80\x9d arises. See Intrater Memorandum at 3. Such a problem could be\npresented if, for example, one office adjudicated matters in which the\nother was or was likely to be a party. Id. at 3-4. We perceive no such\n\xe2\x80\x9cincompatibility\xe2\x80\x9d problem here, however. The function o f the Court o f\nVeterans Appeals is to hear appeals from decisions o f the Board o f\nVeterans Affairs. The Office o f Government Ethics is not a party to such\nappeals. (In any event, we understand that Judge Nebeker will not be\nhearing appeals on the court until after he has resigned as Director o f\nOGE.) Further, the mere fact o f being a federal judge does not prevent\nsomeone from holding another federal office. See Mistretta v. United\nStates, 488 U.S. 361, 397^404 (1989) (Article III judges may undertake cer\xc2\xad\ntain extrajudicial functions).4\nC. Augmentation\n\n31 U.S.C. \xc2\xa7 1301(a) provides that \xe2\x80\x9c [appropriations shall be applied\nonly to the objects for which the appropriations were made except as\notherwise provided by law.\xe2\x80\x9d This is not an absolute barrier to Judge\nNebeker\xe2\x80\x99s being compensated by receiving a salary from one position\nwhile simultaneously serving in another position. See United States v.\nMorse, 292 F. 273, 277 (S.D.N.Y. 1922) (A. Hand, J.) (Special Assistant to\nAttorney General could be compensated by continuing to receive his\n\n3 We have also consistently construed the Dual Compensation Act to require that an individual who\nholds two offices must be paid the higher salary if it is fixed by law. See Intrater Memorandum at 2 n 3\nThe theory is that the dual office-holder would otherwise be waiving a nght to compensation established\npursuant to statute \xe2\x80\x94 which is unlawful. See Glavey v. United States, 182 U.S. 595 (1901), Intrater\nMemorandum at 3 n 8. We understand that Judge Nebeker will receive the C hief Judge\xe2\x80\x99s salary, which is\nhigher than the salary o f the Director o f OGE, and which is fixed by statute, see 38 U.S.C. \xc2\xa7 4053(e)(1).\n4By its plain language, the Incompatibility Clause, U S Const art I, \xc2\xa7 6, cl 2, applies only to members\no f Congress, see 17 Op Att\xe2\x80\x99y Gen. 365, 366 (1882), and so is inapplicable here. An Article I judge is not a\nmember o f Congress\n\n243\n\n\x0csalary as special counsel to a government corporation). As we have\nopined before, see Intrater Memorandum at 6, so long as Judge Nebeker\nperforms substantial responsibilities for both positions, there is no\nrequirement that he devote full time to either position.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice o f Legal Counsel\n\n244\n\n\x0c"


b'Applicability of the Federal Advisory Committee Act to the\nNative Hawaiians Study Commission\nThe Native H aw aiians Study Com m ission (C om m ission) was established to advise C ongress, not the\nPresident o r agencies in the Executive Branch, and is thus not subject to the Federal Advisory\nCom m ittee A ct (FACA). The Com m ission could becom e subject to the FACA if it were utilized to\nadvise the P resident or agencies\nThe Com m ission is not subject to the requirem ent of the Governm ent in the Sunshine Act (G SA ),\nwhich applies only to \xe2\x80\x9c agencies\xe2\x80\x9d a m ajority of whose m embers are appointed by the President\nwith the advice and consent of the Senate. The Com m ission is not an "ag en c y \xe2\x80\x9d as that term is\ndefined for purposes of the G SA , since it was created to undertake studies and not to exercise\nindependent authority. Moreover, none o f its m em bers is appointed w ith the advice and consent of\nthe Senate.\n\nJanuary 4 , 1982\nM EM ORANDUM OPINION FOR THE CHAIRM AN,\nNATIVE HAWAIIANS STUDY COMMISSION\nYou have asked this Office to advise you whether the Native Hawaiians Study\nCommission (Com m ission) is subject to the requirements of the Federal Advi\xc2\xad\nsory Com m ittee Act, Pub. L. No. 92-463, 86 Stat. 770, 5 U .S.C . App. (1976 &\nSupp. V 1981) (FACA), or the Government in the Sunshine Act, Pub. L. No.\n94-409,5 U .S .C . \xc2\xa7 552b (1976) (GSA). We conclude that the Commission is not\nsubject to either Act. O ur analysis of the FACA is somewhat extended because the\nlanguage of the C om m ission\xe2\x80\x99s authorizing act is not entirely clear, although its\nlegislative history demonstrates Congress\xe2\x80\x99 intent that the FACA not be applica\xc2\xad\nble. We conclude that the Commission is not subject to the GSA because the\nCommission is not an administrative \xe2\x80\x9c agency\xe2\x80\x9d as defined by that and other\nrelevant statutes.\n\nI. Applicability of the Federal Advisory Committee Act\nThe FACA imposes certain requirements on \xe2\x80\x9c advisory committees\xe2\x80\x9d to the\nPresident or to federal agencies. The definition of an \xe2\x80\x9c advisory com m ittee\xe2\x80\x9d\nincludes, in relevant part, any \xe2\x80\x9c com m ission\xe2\x80\x9d that is \xe2\x80\x9c established\xe2\x80\x9d by the\nPresident, an agency, or Congress \xe2\x80\x9c in the interest of obtaining advice or recom \xc2\xad\nmendations for the President or one or more agencies or officers of the Federal\n39\n\n\x0cgovernm ent.\xe2\x80\x9d 5 U .S .C . App. \xc2\xa7 3 .\' The definition does not cover commissions\nthat are established solely to advise Congress. W hether the Native Hawaiians\nStudy Com m ission was \xe2\x80\x9c established\xe2\x80\x9d to advise the President or federal agencies\nor solely to advise Congress m ust be determ ined by reference to the Com m is\xc2\xad\nsio n \xe2\x80\x99s authorizing act\xe2\x80\x94 the N ative Hawaiians Study Commission Act (NHSCA).2\n(A) N H SC A Text\nT he text o f the NHSCA does not indicate that Congress established the\nC om m ission to obtain \xe2\x80\x9c advice o r recom m endations\xe2\x80\x9d for the President or federal\nagencies. T he Com m ission\xe2\x80\x99s relationship with the President, however, is suffi\xc2\xad\nciently am biguous to require a review of the N H SCA \xe2\x80\x99s legislative history.\nT he N H SC A directs the Com m ission to \xe2\x80\x9c conduct a study of the culture,\nneeds, and concerns o f Native Hawaiians.\xe2\x80\x9d Section 303(a). The Commission is to\npublish \xe2\x80\x9c a draft report of the findings of the study,\xe2\x80\x9d distribute the draft to\n\xe2\x80\x9c appropriate\xe2\x80\x9d federal and state agencies, native Hawaiian organizations, and the\ninterested public, and solicit their written comments. Section 303(c). The Com \xc2\xad\nm ission is to issue a \xe2\x80\x9c final report of the results of this study\xe2\x80\x9d and send copies to\nthe President and to two congressional com m ittees. Section 303(d).3 Finally, and\nm ost im portantly, the NHSCA also directs the Commission to \xe2\x80\x9c make recom\xc2\xad\nm endations to the Congress based on its findings and conclusions [from the\nstudy].\xe2\x80\x9d Section 303(e).\nT here is no indication whatever, in the text or in the legislative history, that the\nN H SC A established the Commission to advise federal agencies. The Commis\xc2\xad\nsion does not m ake recommendations or submit its final report to any federal\nagencies. The fact that the Com m ission sends a draft report to \xe2\x80\x9c appropriate\xe2\x80\x9d\nfederal agencies for written com m ents suggests that it has the opposite rela\xc2\xad\ntionship\xe2\x80\x94 that it is required to obtain the agencies\xe2\x80\x99 advice, rather than to advise\nagencies.\nW hether the Commission was established to obtain \xe2\x80\x9c advice or recom m enda\xc2\xad\ntions\xe2\x80\x9d for the President is a closer question because the President does receive a\ncopy o f the C om m ission\xe2\x80\x99s final report. While this could imply a relationship for\nthe transm ittal o f advice between the Comm ission and the President, it does not\nby itself make the Commission an advisory body to the President. First, the\nN H SCA draw s a distinction between the Com m ission\xe2\x80\x99s final report, which\ncontains its factual \xe2\x80\x9c findings,\xe2\x80\x9d and its \xe2\x80\x9c recom m endations,\xe2\x80\x9d which are made\n1 T h e FACA also covers com m issions \xe2\x80\x9c u tiliz e d \xe2\x80\x9d by the President o r an agency \xe2\x80\x9c in the interest o f o b taining advice\no r reco m m en d a tio n s " 5 U S C . App \xc2\xa7 3 T h is aspect o f the FACA\xe2\x80\x99s definition o f \xe2\x80\x9c ad v iso ry co m m ittee\xe2\x80\x9d is\nd iscu ssed below\n2 Pub L. N o. 9 6 -5 6 5 , Title IH , 9 4 Stat. 3 3 2 1 , 3324-27 (1 9 8 0 ).4 2 U .S C . \xc2\xa7 2991a note (S upp V 1981). Senator\nM atsunaga in troduced the N H S C A directly o n the S enate floor a s an am endm ent to an act \xe2\x80\x9c to establish the\nK alaupapa N ational H istorical F^rk in the S tate o f Haw aii, and for o th e r purposes \xe2\x80\x9d 126 C ong R ec. 32397 (1980)\n(K alau p a p a A ct) T h e H ouse subsequently p assed the K alaupapa A ct w ith the Senate am endm ent 126 C o n g Rec\n3 2613 (1980). T itle III o f the K alaupapa Acl is separately tilled the N H S C A . B ecause the N H SC A was introduced\nd ire ctly on the H ouse and S enate floors, no com m ittee reports specifically addressed it\n\' T h e C o m m ittees are the S enate C om m ittee on Energy and N atural R esources an d the H ouse C om m ittee on\nInte rio r a n d Insular A ffairs\n\n40\n\n\x0conly to Congress and apparently forwarded separately. Merely sending a copy of\nthe Com m ission\xe2\x80\x99s report to the President would not seem to make the Com m is\xc2\xad\nsion advisory to the President when its recommendations are made only to\nCongress.\' Second, even if the final report itself could be characterized as\n\xe2\x80\x9c advice,\xe2\x80\x9d it is unclear that such advice is really for the President where other\nfactors and the underlying purpose of the study indicate that the Commission was\ncreated to formulate policy recommendations to Congress for future legislation.\nThat the President is to receive a copy of the study, perhaps simply as a courtesy\nor for his general information, does not mean the study was intended to \xe2\x80\x9c advise\xe2\x80\x9d\nhim. Thus, while the language of the statute itself is far from a clear indication\nthat the Commission was intended solely to advise Congress, it does not support\nthe contention that it was established to advise the President.\nTwo other provisions in the NHSCA indicate at least indirectly that the\nCommission was not established to advise the President. The first provision,\n\xc2\xa7 303(b), establishes a modest open meeting \xe2\x80\x9c goal\xe2\x80\x9d for the Commission. This\nprovision would be redundant if the requirements of the FACA were applicable.\nSection 303(b) states:\nThe Commission shall conduct such hearings as it considers\nappropriate and shall provide notice of such hearings to the\npublic, including information concerning the date, location, and\ntopic of each hearing. The Commission shall take such other\nactions as it considers necessary to obtain full public participation\nin the study undertaken by the Commission.\n42 U .S.C . \xc2\xa7 2991a note (Supp. V 1981). If Congress had intended the Com \xc2\xad\nmission to be covered by the FACA, notice of each meeting would ordinarily have\nto be published in the Federal Register, the meeting would have to be open to the\npublic, and interested persons would have the right to appear before the Com m is\xc2\xad\nsion or to file statements. See 5 U .S .C . App. \xc2\xa7 10. Congress\xe2\x80\x99 inclusion of the\nmuch more modest provisions of \xc2\xa7 303(b) in the NHSCA indicates that it did not\nbelieve that the Commission would be subject to the FACA.\nThe second provision, \xc2\xa7 307(a), provides:\nUntil October 1, 1981, salaries and expenses of the Commission\nshall be paid from the contingent fund of the Senate upon vouch\xc2\xad\ners approved by the Chairman. To the extent that any payments\nare made from the contingent fund of the Senate prior to the time\nappropriation is made, such payments shall be chargeable against\nthe authorization provided herein.\n42 U .S .C . \xc2\xa7 2991a note (Supp. V 1981). This reveals that Congress considered\nthe Commission sufficiently close to the Legislative Branch to fund its activities\nup to October 1, 1981, from the contingent fund of the Senate. It also suggests\nthat Congress believed the Com m ission would not be funded from any appropria\xc2\xad\ntions for the Executive Branch, as would normally be available for advisory\ncommittees to the Executive Branch.\n41\n\n\x0cIn sum m ary, the language o f the NHSCA does not support the conclusion that\nC ongress established the Commission to obtain advice or recommendations for\nthe President. M oreover, the moderate \xe2\x80\x9c open m eeting\xe2\x80\x9d provision and the manner\no f funding seem to suggest that the Commission was closely tied to Congress and\nnot intended to be subject to th e FACA.4 These indications are not necessarily\nconclusive, however, because th e President is to receive a copy of the Commis\xc2\xad\nsio n \xe2\x80\x99s final report. Because this might indicate the existence of a reporting\nrelationship with the President, we turn to a review of the N H SCA \xe2\x80\x99s legislative\nhistory.\n(B) Legislative H istory cf the NHSCA\nThree aspects of the N H SC A \xe2\x80\x99s legislative history strongly support the con\xc2\xad\nclusion that C ongress did not establish the Commission to advise the President.\nThese include: (i) comments by the sponsors of the NHSCA that the Commission\nwas to advise Congress; (ii) the existence of two predecessor bills seeking to\nestablish an advisory commission to Congress; and (iii) the circumstances in\nw hich a Senate com m ittee first added to a predecessor bill the requirement that\nthe President should receive a copy of the Com m ission\xe2\x80\x99s report.\n(i) F loor com m ents of the N H SC A \xe2\x80\x99s sponsors\nW hen N H S C A \xe2\x80\x99s two sponsors introduced the bill on the House and Senate\nfloors in the 96th Congress, they characterized the Commission as an advisory\ncom m ittee to Congress without ever mentioning that it would have any rela\xc2\xad\ntionship with the Executive B ranch. Senator M atsunaga stated that the NHSCA\nprovides for a study o f the Native Hawaiians by an unbiased\nFederal Commission com posed prim arily of non-Hawaiians, and\nit would require the Com m ission to report its findings to Con\xc2\xad\ngress. If, at that time, the Congress determines that furth er action\nis necessary, perhaps a settlem ent act would be introduced as it\nwas in the case c f Alaskan Natives.\n126 C ong. Rec. 32399 (1980) (em phasis added). In similar fashion, Representa\xc2\xad\ntive Phillip Burton noted:\nMr. Speaker, it is my sincere hope that 2 years from now, the\nfindings and recommendations from this com m ission, relative to\nthe past and current problem s now facing the Native Hawaiian\npopulation in the State o f Hawaii and elsewhere, will be such that\nit w ill establish a base upon which the Congress can then decide\n4 T h e p resid en tial pow er o v er the appointm ent o f C om m ission m em bers un d er the N H SC A might be said to\nsu p p o rt a co n trary view T h e President ap p o in ts the m em bers o f the C o m m issio n , designates its chairm an and vice\nc h a irm an , fills all vacancies, and calls the first m eeting. S ections 302(b), (c), (d), (e). T he fact that the President\nappoints th e m e m b ers, how ever, does not b e a r directly, as an analytical matter, on the question regarding the\nfunctions the C om m issio n m em bers are to p erform once they are appointed\n\n42\n\n\x0con the best possible approach to assist the Native Hawaiians. Mr.\nSpeaker, the Native Hawaiians definitely need help, and after\nholding hearings last year in Hawaii on this legislation, I am\nconvinced more than ever o f the need to establish this com m is\xc2\xad\nsion; and I might add that the Congress does have a responsibility\nto these people.\n126 Cong. Rec. 32613 (1980) (emphasis added). Thus, the bill\xe2\x80\x99s two sponsors\ndescribed the Commission as a body to advise Congress and never indicated that\nit would have an advisory relationship with the Executive Branch.5\n(ii) Predecessor bills\nThe legislative history further reveals that the two predecessor bills to the\nNHSCA in the two prior Congresses\xe2\x80\x94 S.J. 1 5 5 ,94th C ong., 2d Sess. (1976) and\nS.J. Res. 4, 95th C ong., 1st Sess. (1977)\xe2\x80\x94 each had sought to establish a\ncommission specifically to advise Congress.\nThe first bill, S.J. 155, was introduced in the 94th Congress by Senator Inouye\nto establish an Hawaiian Native Claims Settlement Study Com m ission.6 The\ncommission was to conduct a study of \xe2\x80\x9c the nature of the wrong committed\nagainst . . . Hawaiian Natives\xe2\x80\x9d when the United States allegedly caused the\nexpropriation of their ancestors\xe2\x80\x99 land in 1893.7 The proposal for this commission\nrepresented an alternative to another bill introduced by (then) Representative\nMatsunaga to establish a corporation to settle Hawaiian claims for the losses.8\nBecause of congressional opposition to a claims settlement procedure, Senator\nInouye\xe2\x80\x99s bill sought to establish a commission which, according to its preamble,\n\xe2\x80\x9c should be convened to advise the Congress on all matters pertaining to such\nremedy.\xe2\x80\x9d 9\nIn the 95th Congress, Senators Inouye and M atsunaga introduced the second\npredecessor bill, S.J. Res. 4, which was identical to the draft of S.J. Res. 155\nreported out of the Senate Committee on Interior and Insular Affairs in the 94th\nCongress. Like S.J. 155, the preamble to S.J. Res. 4 stated that the commission\nwas intended specifically to advise Congress. It stated:\nResolved by the Senate and House of Representatives of the\nUnited States of America in Congress assembled. That the Con\xc2\xad\ngress hereby declares that a wrong has been committed against the\nAboriginal Hawaiians which the United States is obligated to\nendeavor to remedy; . . . that the Congress wishes to establish a\ncommission o f Aboriginal Hawaiian and other citizens to advise it\n5 T he b rief legislative history o f the N HSCA does not indicate that the P resident requested establishm ent o f the\nC om m ission T h e E xecutive B ranch did not participate in the drafting of the proposed legislation to crea te it.\n6 S J Res. 155, 94th C ong , 2d Sess (1976)\n7 S J. Res 155, reprinted in S R ep No 1356, 94th C o n g ., 2d Sess. 2 -3 (1976).\n8 H R. 1944, 94th C ong , 1st S ess (1975) R epresentative M atsunaga had introduced a sim ilar bill in the 93rd\nC o n g ress, H R 15666. 93rd C o n g ., 2d Sess. (1974).\n9 S J. Res 155, reprinted in S Rep. N o 1356, 94th C o n g ., 2d Sess. 2 (1976).\n\n43\n\n\x0con all m atters pertaining to the best manner in which to provide\nsuch remedy.\nS.J. Res. 4 , 95th C ong., 1st S ess., 123 Cong. Rec. 34541 (1977) (emphasis\nadded). The Senate and House Com m ittee R eports10 and floor comments on the\nb ill" also clearly indicated that the comm ission was specifically established to\nadvise C o n g ress.12\nA gainst this consistent history dem onstrating Congress\xe2\x80\x99 desire to create a\ncom m ission to advise it regarding the Native Hawaiians, there was no indication\nwhen Congress passed the N H SCA in the 96th Congress that it also intended to\nm ake the proposed Commission advisory to the President.13 W hen introducing\nthe N H SC A , Senator Matsunaga explained that he had deleted various provisions\no f its predecessor, S.J. Res. 4 , simply to assure that the Com m ission\xe2\x80\x99s study\nwould be objective. His comments did not reflect any intent to create an advisory\ncom m ittee to the President.14\n(iii) The requirem ent that the Comm ission report be sent to the President\nFinally, the legislative history of S.J. Res. 4 sheds some light on the back\xc2\xad\nground and significance of the requirem ent that the Commission send its report to\n10 T h e S enate R eport stated\nT he P ro p o sed S tu d y Com mission w o u ld subm it a report o f its fin d in g s to the C ongress and\nreco m m en d rem edies to repair the w ro n g perpetrated against the A boriginal H aw aiian people.\n*\n\n*\n\n*\n\nB y en actm en t o f S enate Joint Resolution 4 , the C ongress w ould establish a procedure for determ in\xc2\xad\ning w hat, i f any, action th e Congress c a n lake to fin a lly settle the claim s o f the A b o rig in a l H aw aiians.\nT he reco m m en d a tio n s subm itted to th e C ongress by the A boriginal H aw aiian C laim s S ettlem ent\nS tu d y C o m m issio n cannot substitute f o r the C ongressional determ in a tio n , but are ex p ecte d to assist\nth e C ongress in m a kin g that determ ination\n*\n*\n*\nS enate Joint R esolution 4 would estab lish [a com m ission] and ask it to co nduct the study to provide\nth e gro u n d w o rk necessary fo r Congress to consider what, i f any, settlem en t can be fa s h io n e d fo r the\nA b o r ig in a l H aw aiian p eo p le\nS. R ep N o 50 1 , 9 5 th C o n g .. 1st Sess 5, 8, 9 (1977) (em phasis added). T he H ouse C om m ittee Report reflects the\nsam e approach S e e H Rep. N o. 860. 95th C o n g ., 2d Sess 1, 2 , 5 (1978)\n11 S e e 123 C o n g . R ec. 34544 (1977) (rem arks of Sen Inouye), 124 C ong. R ec 15052 (1 9 7 8 ) (rem arks o f Rep\nR oncalio), id at 15054 (rem arks o f Rep H eftel), 124 C ong. R ec. 28496 (1 9 7 8 ) (rem arks o f Rep Johnson), id at\n2 8497 (rem ark s o f R ep B urton); id. at 28498 (rem arks of Rep. H eftel)\n12 S.J. R es. 4 w as not en a cted While the S en ate passed S J Res 4 . only a sim p le m a jo n ty o fth e H ouse m em bers\nvoted for its p assage w hen it w as twice brought to the floor. S e e 123 Cong Rec 34544 (1977); 124 C o n g Rec\n2 8505 (1 9 7 8 ) T h e sp ecial rules under w hich it was brought to the H ouse floor required a tw o-thirds vote\n13 S enators M atsunaga and Inouye also in tro d u ced in the 96th C ong ress a bill that was identical to the version o f\nS .J R es. 4 w hich passed the S enate in the 9 5 th C ongress S ee S 213 1 , 96th C o n g ., 1st Sess , 125 C o n g Rec\n3 5 9 5 6 (1979). N o action w as taken on the bill after it was referre d to C om m ittee. C ongressm an A kaka also\nin tro d u ced a sim ilar bill, H R 5 7 9 1 ,96th C o n g , Is iS e s s (1979), w hich w as referred to the H ouse C om m ittee on\nIn te rio r a n d In su lar A ffairs S ee H earings on H .R . 5791 Before th e Sub co m m . on N a tional Parks a n d Insular A ffairs\nc f th e H o u se C o m m on In te rio r and Insular A ffairs, 96th C o n g ., 1st Sess (1979)\n14 S en ato r M atsunaga\'s bill d id delete the p ream b le that had included the sentence stating that the C om m ission\nw as esta b lish ed to ad v ise C ongress But th is does not reflect any intent to change the advisory role o f the\nC o m m issio n . F irst, as the S en ato r explained, he elim inated the p ream b le because certain H ouse m em bers objected\nthat it \xe2\x80\x9c ex p ressed [C ongress\xe2\x80\x99] sense that a w ro n g had been done to H aw aiians.\xe2\x80\x9d 126 C ong Rec 32399 (1980). He\nd id not say that he intended to alter the C om m ission\xe2\x80\x99s advisory du ties. S econd, the Senator also am ended S J Res 4\nto req u ire ex p ressly that the C om m ission m a k es its recom m endation to C ongress. S J Res 4 had not specified to\nw hom the reco m m en d a tio n s w ere to be made, although they were to have been co n tain ed in the R eport S ee S J Res\n4 , \xc2\xa7 4 , rep rin te d in S . Rep. N o 50 1 , 95th C o n g , 1st Sess 3 (1 9 7 7 ) T h u s, even though the S enator rem oved the\np arag rap h specifically id en tify in g the C om m ission as advisory to C o n g ress, he added the requirem ent that the\nC o m m issio n sh o u ld m ake its recom m endations only to C ongress. T hese facts are inconsistent w ith the conclusion\nthat elim in atio n o f th e p ream b le was intended to make the C om m issio n advisory to the P resident\n\n44\n\n\x0cthe President. As originally introduced by Senators Inouye and M atsunaga, S.J.\nRes. 4 required the Commission to submit its report, including recom m enda\xc2\xad\ntions, to C ongress.15 The Senate Committee on Energy and Natural Resources\namended the bill to direct the Com mission, among other things, to send a copy of\nits report to the President.16 Although the Committee Report did not com m ent on\nthis change, it clearly indicated that the purpose of the Commission was to advise\nC ongress.17 The subsequent floor comments appear to confirm this interpreta\xc2\xad\ntio n ,18 and there is no indication that the change was intended to make the\nCommission advisory to the President.\n(C) Conclusion\nIn light of these clear indications from N H SCA \xe2\x80\x99s legislative history that the\nCommission was created to advise the Congress and not the President or federal\nagencies, we conclude that it is not subject to the FACA. The Commission\nmembers should be aware, however, that the Commission could become subject\nto the FACA, despite the fact that it was not \xe2\x80\x9c established\xe2\x80\x9d to advise the President\nor federal agencies, if it is so \xe2\x80\x9c utilized\xe2\x80\x9d by the President or an agency. 5 U .S.C .\nApp. \xc2\xa7 3. We are currently aware of no information, however, indicating the\nCommission has been or is being utilized in this capacity.\n\nII. Applicability of the GSA\nYou have also asked us to determine whether the Commission is subject to the\nGovernment in the Sunshine Act (GSA), which requires that certain meetings o f\nagencies that fall within its coverage \xe2\x80\x9c be open to public observation.\xe2\x80\x9d 5 U .S .C .\n\xc2\xa7 552b(b). The GSA applies, absent special exemptions, to\nany agency, as defined in section 552(e) of this title [the Freedom\nof Inform ation A ct\xe2\x80\x99s definition], headed by a collegial body\ncom posed of two or more individual members, a majority of\nwhom are appointed by the President with the advice and consent\nof the Senate, and any subdivision thereof authorized to act on\nbehalf of the agency.\n5 U .S .C . \xc2\xa7 552b(a)(l). The Commission does not fall within this definition for\ntwo reasons.\nFirst, none of its members are appointed to the Commission with the advice\nand consent of the Senate. The NHSCA only provides that members be appointed\nby the President.\n15 S J Res. 4 , \xc2\xa7 3, reprinted in H earings on S J Res 4 a n d H J R es. 526 B efore the Subcom m on P ublic L ands\na n d Resources c f the S en a te Com m on E nergy and N a tu ra l Resource\'s a n d the S u b co m m . on Indian A ffairs a n d\nP ublic L a nds c f the H o u se C om m on Interior a n d In su la r Affairs. 95th C o n g .. 1st Sess. 18-21 (1977)\nl6 S Rep N o 5 0 1 , 9 5 th C o n g ., 1st S ess 3 (1977)\n17 See note 10, supra\n18 See note 11, supra\n\n45\n\n\x0cSecond, the Commission is not an agency as that term has been used under the\nFreedom of Inform ation Act, 5 U .S.C . \xc2\xa7 552(e) (FOIA), whose definition the\nGSA expressly incorporates. T he FOIA defines \xe2\x80\x9c agency\xe2\x80\x9d as follows:\nFor purposes of this section, the term \xe2\x80\x9c agency\xe2\x80\x9d as defined in\nsection 551 (1) of [the A dministrative Procedure Act] includes any\nexecutive department, military departm ent, Government corpo\xc2\xad\nration, Government controlled corporation, or other establish\xc2\xad\nm ent in the executive branch o f the Government (including the\nExecutive Office of the President), or any independent regulatory\nagency.\n5 U .S .C . \xc2\xa7 552(e). The FOIA thus incorporates the Administrative Procedure\nA ct (APA) definition of \xe2\x80\x9c agency,\xe2\x80\x9d with several additions that are not relevant\nhere.\nThe APA defines \xe2\x80\x9c agency,\xe2\x80\x9d in relevant part, as \xe2\x80\x9c each authority of the\nG overnm ent of the United States, whether or not it is within or subject to review\nby another agency.\xe2\x80\x9d 5 U .S.C . \xc2\xa7 551(1). This definition has been judicially\nconstrued to require that an Executive Branch entity, to be deemed an \xe2\x80\x9c agency,\xe2\x80\x9d\nm ust have \xe2\x80\x9c substantial independent authority in the exercise of specific func\xc2\xad\ntio n s,\xe2\x80\x9d Soucie v. D avid, 448 E 2d 1067, 1073 (D .C. Cir. 1971), or the \xe2\x80\x9c authority\nin law to m ake d ecisions,\xe2\x80\x9d Washington Research Project, Inc. v. HEW, 504 F.2d\n238, 248 (D .C . Cir. 1974), cert, denied, 421 U .S. 963 (1975). Such tests cannot\nnorm ally be m et by a committee that merely gives advice because its chief\nfunction is only to make recom m endations, not to act upon them or to exercise\nindependent authority. See Wolfe v. Weinberger, 403 F. Supp. 238, 241 (D .D .C .\n1975); G ates v. Schlesinger, 3 6 6 F. Supp. 797, 799 (D .D .C . 1973). As we have\nalready indicated, the legislative history of the Commission indicates that it was\ncreated to undertake studies and to make recommendations, not to \xe2\x80\x9c exercise\nindependent authority.\xe2\x80\x9d Thus, in our view, the Commission is not an \xe2\x80\x9c agency\xe2\x80\x9d\nas that term is defined by the APA and the FOIA, and adopted by the G S A .19\nIn short, we conclude, based on the language and legislative history of the\nlegislation creating the Commission, that it is neither an \xe2\x80\x9c advisory com m ittee\xe2\x80\x9d\nfor purposes of the FACA nor an \xe2\x80\x9c agency\xe2\x80\x9d for purposes of the GSA. It is\ntherefore not subject to the requirem ents of either statute.\nT\n\nheodore\n\nB. O\n\nlson\n\nA ssistant Attorney General\nOffice o f Legal Counsel\n\n19\nT h e N H S C A provides that the C om m ission may \xe2\x80\x9c secu re directly from any departm ent o r agency o f the United\nS tates inform ation n ec essary to enable it to c a rry out this title . . and m ay use the U nited States m ails in the same\nm a n n er and upon the sam e conditions as o th e r departm ents and agencies of the U nited States.\xe2\x80\x9d Section 30 2 (j) & (k)\nT h e re is no indication from this oblique refere n ce that C ongress intended to create the C om m ission as an \xe2\x80\x9c agency.\xe2\x80\x9d\nIn any e v e n t, the definition o f an agency u n d e r the G S A is functional, and C ongress clearly did not intend to\nem pow er th e C om m issio n to exercise functions that w ould bring it w ithin the G S A \xe2\x80\x99s definition o f an \xe2\x80\x9c ag e n cy \xe2\x80\x9d\n\n46\n\n\x0c'