by Jay Wexler
Well, obviously the position of secretary of state was not created while Hillary Clinton was serving as one of New York’s two senators, but the secretary’s salary was increased by an executive order that President George W. Bush signed in 2008. Doesn’t this mean, then, that Hillary Clinton’s appointment as secretary of state violated the ineligibility clause, and that she could not legally be appointed to that position until 2013, when her term as senator was set to expire?
It turns out that this conundrum has come up several times in US history, and the executive branch has flip-flopped all over the place about what to do about it. In the beginning, the executive took a strong tack against nominating someone who seemed to violate the ineligibility provision. President Washington, for example, withdrew the nomination of a senator to be a Supreme Court justice when he realized the position had been created while the senator had still been in office. About a hundred years later, Attorney General Benjamin Brewster wrote an opinion explaining that a senator could not be appointed to a tariff commission because the commission had been created before the senator’s term had expired (even though the senator had resigned prior to the creation of the office). Brewster recognized that there couldn’t have been any real conflict-of-interest problem, given the time of the senator’s resignation, but he took what we could call these days a hard-core “textualist” position on the meaning of the ineligibility clause. “I must be controlled exclusively by the positive terms of the provision of the Constitution,” the attorney general wrote. “The language is precise and clear, and in my opinion, disables [the ex-senator] from receiving the appointment.”
Now let’s add a twist. What should happen if, after Congress raises the salary of an office, it then passes a law reducing the salary back to where it was in the first place? Can a member of Congress who was sitting when the salary raise was passed take the office or not? Does the subsequent law reducing the salary back to its original level fix the problem? On the one hand, the salary of the office had been increased while the member was sitting in Congress, but on the other hand, by the time the member takes the office, the salary will be back where it was prior to the increase. It’s a hard question, and not just an academic one. Indeed, this precise scenario, which is what happened with Secretary Clinton, has occurred many times over the years. The first time it came up, the question was whether President Richard Nixon could appoint Senator William Saxbe to be his attorney general, even though Congress had increased the AG’s salary from $35,000 a year to $60,000 a year while Saxbe was a senator, on the grounds that Congress had subsequently passed a law lowering the AG’s salary back to $35,000. Again, it would seem that the rationale for the ineligibility prohibition—to prevent the conflict-of-interest scenario where Congress raises the salary of an office so that a member of Congress can then take the position and buy himself a new Jaguar with the difference—doesn’t apply, since after the subsequent legislation there’s no money anymore with which to buy a new Jaguar. On the other hand, the ineligibility clause does seem to establish a categorical ban: “No Senator . . . shall be appointed” to any office which has had its salary raised during the senator’s term in office.
The problem illustrates a recurring one in constitutional law generally—should constitutional interpretation be pragmatic, looking at mushy things like the consequences of interpreting a constitutional provision in a certain way, or should it be purely textual, looking just at the language of the document plain and simple? One of the most prominent textualists of all time is Robert Bork, who thinks our society is slouching toward Gomorrah and whose nomination to the Supreme Court was famously rejected by the Senate back in 1987. Weirdly, however, it was Bork who first defended the so-called Saxbe fix back when he was serving as the acting attorney general in 1973, a job that he got because he was the only official in the Nixon Justice Department willing to fire Special Prosecutor Archibald Cox during the Watergate scandal. “The purpose of the constitutional provision,” Bork testified at Saxbe’s confirmation hearing, “is clearly met if the salary of an office is lowered after having been raised during the Senator’s or Representative’s term of office.”
Subsequent Republican Justice Department officials, however, would be far less loosey-goosey in their constitutional interpretation than Bork. When Lewis Powell retired from the Supreme Court in 1987, one of the top prospects to replace him was Senator Orrin Hatch. The salaries of the justices had been increased while Hatch had been in office, however, so once again the question was raised whether Congress could fix the problem by reducing the salary that Hatch would receive back to its previous level. This time the Justice Department said no. In an OLC opinion written by a superconservative associate attorney general named Charles Cooper (he more recently has defended California’s noxious anti–gay marriage constitutional amendment in the courts), the office said that the plain language of the ineligibility clause flat out prohibits any member of Congress from taking any executive office if the salary of that office had been increased during the senator’s term in Congress. The rest is history. Reagan appointed Bork instead of Hatch to replace Powell on the Court; Bork’s nomination was defeated; Anthony Kennedy ended up on the Court; and now, as the Court’s swing vote, Kennedy basically determines the law for the nation all by himself.
So if Orrin Hatch couldn’t be a Supreme Court justice, why could Hillary Clinton be named secretary of state? The answer is simple. By the time President Obama got around to nominating Hillary Clinton for the post, liberal pragmatists had taken back the OLC. When Obama asked the Justice Department if a bill reducing the secretary’s salary back to its pre-2008 level would make it constitutional to nominate Clinton, OLC issued an opinion that approved of the fix. Citing the history and purposes of the ineligibility clause, as well as the “practice of the political branches for more than a century,” the office concluded that “salary rollbacks achieve compliance with the Ineligibility Clause.” The result? Hillary Clinton took office, but with $4,700 less per year than she thought she’d have, which, given the Clintons’ legal bills, was nothing to sneeze at.
The incompatibility clause may be fairly obscure to the average American citizen, and even to the average American lawyer, but for a while back in the early to mid-1980s, it was the centerpiece of a high-profile campaign to radically change American government by weakening the US system of separated powers. At least one of the framers of the Constitution thought the clause was the “cornerstone on which our liberties depend,” and at least two modern commentators have argued that without the clause, the United States might have developed a parliamentary system of government like the ones that exist in England or France. So it is not surprising that people who do not like separation of powers would target the incompatibility clause. But why would anyone want to take aim at the separation of powers?
The framers insisted on separating governmental powers because they were terrified by the prospect of concentrated authority, which they thought was a prescription for tyranny. After all, they had fled England and fought a revolution to free themselves from the despotism of a corrupt king with seemingly unlimited power. Preoccupied with avoiding concentrated power, the framers broke it up in all sorts of ways—they created the three branches, made two houses rather than one house in the Congress, gave separate roles to the federal government and the states, wrote the First Amendment religion clauses to separate church and state, and used the amendment’s speech and press clauses to create an independent press and protect dissent. Their idea was that if the country had all sorts of different centers of power, it would be far less likely that any one of those power centers would be able to impose tyrannical rule on the rest of the nation.
Separating powers comes with costs, however. A system of government with different centers of power is slow and inefficient by design. No one center of power—the president, the Senate, the House, et cetera—can do anything bad all by itself, but no center of power can do anything good all by itself either. The system m
akes it difficult for government to solve complex problems like the ones that we face every day in our modern society. For example, although I’m sure that by the time you read this our government will have completely solved the nation’s enormous health-care crisis once and for all, as I’m writing, the country is in the middle of a fierce debate over whether reform is necessary and, if it is, what kind of reform would be best. The president has one idea; the Senate another; the House yet another. If the president alone could make policy without having to go through Congress, we wouldn’t be stuck in this stalemate and we could move on to other things, like solving the country’s massive parking problem.
Throughout our history, prominent critics have from time to time complained that the costs of separated government outweigh its benefits. One of the most famous of these critics was Woodrow Wilson, the twenty-eighth president of the United States, who wrote a paper on the topic as an undergraduate at Princeton and then developed his ideas into a book published well before he was elected to office. According to Wilson, a government with separate powers is inevitably both ineffective and unresponsive to the people whom it represents. Wilson thought that if the framers could have seen how the country had evolved by the time he was writing (the 1880s), they would have been “the first to admit that the only fruit of dividing power had been to make it irresponsible.” Although Wilson had problems with many of the aspects of the American system of separated powers, he specifically argued in favor of amending the incompatibility clause so that members of Congress could serve in the president’s cabinet, something he thought was critical to moving the nation toward the British system that he thought was way better than the American one.
Following in Wilson’s footsteps, a group of reformers in the early 1980s took up the cause of challenging the incompatibility clause as part of an overall assault on the system of separated powers. The group was small (maybe around two hundred members) but well-heeled and powerful—it consisted of a senator and a former treasury secretary and other officials and scholars, including Lloyd Cutler, who was a two-time White House counsel and a founding partner of one of the country’s most formidable private law firms. The group, which called itself the Committee on the Constitutional System, held meetings and published papers and advocated a complete reformation of our three-branch structure. In a collection of papers entitled Reforming American Government, the group provided specific recommendations about how to amend the Constitution to achieve its goals. With regard to the incompatibility clause specifically, the group had this to say:
The United States is unique among the major democracies of the West in its prohibition of service by legislators in the administration. . . . The prohibition against service by legislators in the executive branch was termed “the cornerstone on which our liberties depend” in debates at the constitutional convention. Little explanation was offered for this judgment, which seems to rest on an exaggerated view of the separation of powers doctrine and the amount of money a legislator could make in 1789 if he won appointment as a postmaster or customs collector. . . . The proposed amendment removes the existing constitutional prohibition, contained in Article I, Section 6. . . . [T]he change would emphasize cooperation rather than stalemate, and bring a hometown touch to federal agencies now too often isolated in Washington. The proposed amendment might also increase the attraction of a seat in the House of Representatives and thereby work to better the overall quality of the House. In addition, the amendment would somewhat expand the president’s choice of executive officials.
The group’s book continued with two alternative proposals to amend the incompatibility clause. One of those proposals, for example, would have made it clear that any member of Congress could be appointed to executive office “regardless of the time the office was created or the emoluments whereof were increased, without being required to vacate his or her seat” in Congress. Section 2 of that proposed amendment would have actually required the president to appoint at least four (but no more than twenty-five) members of Congress to executive positions.
Before long, defenders of the US system of separated powers spoke up and vigorously challenged the recommendations of the Committee on the Constitutional System. As a result, the recommendations ended up falling on deaf ears, and the incompatibility clause remained intact. In a way, then, the clause is sort of like a constitutional Utah prairie dog. These small light-brown rodents were brought back from possible extinction (ranchers were poisoning them so they wouldn’t eat grass meant for cattle) when the Fish and Wildlife Service put them on the federal list of threatened and endangered species back in the 1970s. Having withstood attacks from their mortal enemies, Utah prairie dogs can now return to dotting the western Utah landscape with furry cuteness, in much the same way that the incompatibility clause will continue to play its critical role in ensuring that the framers’ vision of separated government remains the basis of our democratic system.
CHAPTER 2
The Weights and Measures Clause
Legislative Powers
The Congress shall have Power To . . . fix the Standard of Weights and Measures.
Article I, Section 8
For us earthlings, no planet is as mysterious and intriguing as our neighbor, the planet Mars. Named for the Roman god of war and known as the Angry Red Planet, Mars calls to mind images of distant colonies, little green men, alien invasions, and involuntary anal probes. Of course, scientists now know that if life ever existed on Mars, it was (or is) probably of the simple, microscopic variety rather than of the three-headed, body-snatching, hobgoblin sort. Still, though, the question of whether life ever existed on Mars remains important, not only for understanding Mars itself, but also for understanding our own planet—where we’ve come from, and where we might be going.
Accordingly, over the past few decades NASA scientists have spent billions of dollars trying to learn everything they possibly can about our neighboring planet. Among other things, scientists want to understand the current climate on Mars, which apparently holds some clues as to whether conditions on the planet may ever have been hospitable to complex life. Back in the late 1990s, as part of this climate project, NASA sent a $125 million space probe, the Mars climate orbiter, out to gather information and relay it back to Earth. The spacecraft made the ten-month trip from Earth to Mars without incident. As it neared its destination, the orbiter fired its engines in order to slow down and enter into orbit around Mars. At that point, however, something went terribly wrong. The spacecraft was supposed to come out from behind the planet twenty-five minutes after firing its engines, but as NASA scientists nervously waited for it to emerge, no signal from the spacecraft ever returned. The mission was a total disaster. Nobody knows exactly what happened to the orbiter. Some have suggested that it got too close to Mars and either burned up in the atmosphere or crashed into the planet. Another theory has it that the spacecraft remains in space, doomed to orbit around the sun for eternity.
What caused this disaster to happen? In the weeks following the events, NASA scientists studied the data and crunched the numbers. They learned that a key parameter guiding the spaceship’s operation near Mars was off by a factor of exactly 4.45. Aha, the scientists realized—that’s the exact difference between the measure of force known in the metric system as “newton-seconds” and the analogous measure of force in the ridiculous United States–only measuring system known as “pounds-seconds.” Officials at the Lockheed Martin Corporation, who built the Mars orbiter, were transmitting this key information in pounds-seconds while NASA was assuming the figures were being sent in newton-seconds. Oops. Everybody was in a state of disbelief. How could such a stupid, stupid thing have happened? As one prominent space scientist put it: “This is going to be the cautionary tale that is going to be embedded into introductions to the metric system in elementary school and high school and college physics till the end of time.”
The Mars-probe calamity was a substantial setback for the US space program, and American cit
izens were rightly furious. If we are going to spend hundreds of millions of dollars on space exploration instead of on our roads and schools, then at least we should get things right. Whom should we as citizens hold accountable for the disaster? Clearly, Lockheed Martin bears some responsibility, but as a public agency, NASA deserves a larger share of the blame. What about Secretary of State John Quincy Adams or Saturday Night Live’s Dan Aykroyd? As you’ll see, both of these guys played some role—however slight—in bringing about the catastrophe. How about Congress? Congress? What did Congress have to do with screwing up this space mission?
Quite a lot, actually. It is Congress that, under the Constitution, has the authority to decide whether the country should adopt the metric system. If it had done this at some point over the past two hundred years, the Mars-probe incident would likely never have happened. Instead, fearing public disapproval, Congress in the mid-1970s punted the issue to an executive branch agency, which basically did nothing. Thanks a lot, Congress. It turns out that the little bat-eared-fox-like weights and measures clause is a terrific case study for understanding the scope of congressional power and the tendency of modern Congresses to delegate key policymaking authority to administrative agencies, a central and sometimes disturbing feature of American democracy.
