Saxbe fix

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    The Saxbe fix (

    United States Constitution's Ineligibility Clause. That clause prohibits the president from appointing a current or former member of Congress to a civil office position that was created, or to a civil office position for which the pay or benefits (collectively, "emoluments") were increased, during the term for which that member was elected until the term has expired. The rollback, first implemented by an Act of Congress
    in 1909, reverts the emoluments of the office to the amount they were when that member began his or her elected term.

    To prevent ethical conflicts,

    United States Cabinet. Members of Congress have been appointed to federal judgeships
    without any fix being enacted; court challenges to such appointments have failed.

    There were four Saxbe fixes for appointees of presidents prior to Barack Obama. The first two rollbacks concerned appointees of Republicans William Howard Taft and Richard Nixon, and the last two were implemented for appointees of Democrats Jimmy Carter and Bill Clinton. Congress approved two more in the weeks preceding Obama's presidency in preparation for his designated Cabinet nominees. Since the 1980s, Saxbe fixes have only been temporary, extending to the conclusion of the term for which the sitting member of Congress was elected. The Clause has received relatively little scholarly or judicial attention; the sparse extant debate centers on whether the reduction of salary satisfies the Ineligibility Clause, or whether affected members of Congress are ineligible for appointment in spite of the reduction.

    Background

    Main article: Ineligibility Clause
    United States Constitution's Ineligibility Clause
    , which later gave rise to the Saxbe fix.

    In his notes of the

    Philadelphia Convention in 1787, James Madison expressed the fear that members of Congress would create new federal jobs, or increase the salaries for existing jobs, and then take those jobs for themselves. Madison wrote that corrupt legislative actions, in the form of the unnecessary creation of offices and the increase of salaries for personal benefit, were one of his greatest concerns.[1] The delegates who were present agreed that no member of Congress should be eligible to be appointed to an executive position while serving in Congress.[2] Madison originally proposed a one-year length on such a bar.[3] However, Nathaniel Gorham, James Wilson, and Alexander Hamilton wanted no bar at all at the conclusion of congressional service.[2] Eventually, Madison proposed a compromise: "that no office ought to be open to a member, which may be created or augmented while he is in the legislature"; this led to extensive debate.[2]

    The delegates eliminated the prohibition on a member of Congress's assuming holding state office based on the rationale that there might be times when it might be in the best interest of the nation to allow such service. They eliminated the one-year ban because they judged it to be ineffective in protecting the Constitution.[2][4] Charles Cotesworth Pinckney moved that the states vote and the prohibition carried by vote of 8 states to 3.[3] Robert Yates noted that the clause "which shall have been created, or the Emoluments whereof shall have been increased" was an amendment passed in his absence, and that he did not place much faith in it as he felt unscrupulous politicians would circumvent it by creating new positions for persons who would subsequently place a member of Congress in a vacancy that they and not Congress created.[4] Madison moved that the phrase "or the Emoluments whereof shall have been augmented by the legislature of the United States, during the time they were members thereof, and for one year thereafter." This motion failed 2–8, with one state divided.[3] The clause was limited to "civil" offices so as not to restrict military service.[2] Accordingly, the clause was passed in its current form without an explicit time consideration.

    "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

    Article 1, Section 6, Clause 2 of the United States Constitution

    William Saxbe, the device's first intentional use predates him by several decades. As a matter of historical tradition, the Saxbe fix is considered sufficient to remove the disqualification of the Ineligibility Clause.[14][15]

    History

    18th and 19th centuries

    United States Supreme Court
    .
    Edward Wolcott (right) chaired a commission appointed by President William McKinley
    .

    The Ineligibility Clause has interfered with appointments as far back as 1793.

    Thomas Johnson. However, Paterson, who was serving as Governor of New Jersey, had previously been elected to serve a Senate term that would expire at noon on March 4, 1793. Washington withdrew the nomination and withheld it until the afternoon of March 4, when the term for the disqualifying office had expired.[16]

    In 1882, a formal opinion by the

    Matthew Ransom's appointment as Minister to Mexico was invalid, as that office's salary had been increased during Ransom's term; the belated discovery precluded Ransom from drawing a salary.[19]

    The practice of barring members of Congress from serving in other civil offices was not without exception. Ransom, after all, was in fact appointed.[20] In another case, there may have been an inadvertent Saxbe fix. Senator Lot M. Morrill began serving a six-year term in 1871, and in 1873, as part of the Salary Grab Act, Congress increased Cabinet officers' salaries from $8,000 to $10,000; it repealed the increase in 1874, and two years later—before the end of his term—Morrill was appointed United States Secretary of the Treasury. The repeal of the "salary grab" was motivated by reaction to public outrage rather than concerns about a member's eligibility for office, but Acting United States Attorney General Robert Bork would later cite the Morrill case in his opinion about the Saxbe appointment.[21]

    20th century

    Philander C. Knox

    William Taft used what is now referred to as the Saxbe fix to appoint Philander C. Knox as Secretary of State
    .

    In 1909, President-elect Taft announced his intent to nominate Senator Philander C. Knox to be Secretary of State.[22] Shortly after the announcement, the Clause emerged as a problem that caught those involved by surprise:[20] Knox had been elected to serve a term that would not end until 1911, and during that term Congress had voted to increase executive branch pay.[20][23] Members of Congress considered reverting the fix after the appointed nominee had resigned and assumed the post so that Knox would not have to forgo any emoluments.[20] Members of Congress also discussed reverting the salaries of all United States Cabinet members.[20] At the suggestion of the Senate Judiciary Committee, Congress passed a bill reducing only the Secretary of State's salary to the level it had been at before Knox's term began, believing this would cure the problem.

    The Senate passed the bill unanimously,

    U.S. House of Representatives, where the same measure failed to get a required two-thirds vote under a motion to suspend the rules and pass, a procedure normally reserved for uncontroversial matters.[24] After a different procedural rule was applied, it passed by a 173–115 majority vote and President Roosevelt subsequently signed the bill.[24] On March 4,[23] the first Saxbe fix became effective when the salary of the Secretary of State (but not that of other Cabinet members) was reverted from $12,000 to $8,000.[25] The Senate confirmed all of Taft's Cabinet appointees on March 5,[26] and Knox took office on March 6.[27]

    In 1922, the boundaries of the Clause were further defined when Senator

    movant in the Black case, Albert Levitt, only had an interest in the case as a United States Citizen and a member of the Supreme Court bar, which the Court found to be insufficient.[14]

    William Saxbe

    President Richard Nixon used the Saxbe fix to appoint William B. Saxbe as Attorney General.

    The

    Assistant to the President at the same $42,500 salary,[30]
    a position presumably outside the scope of the Clause.

    The rollback device gained its name when President Richard Nixon sought to appoint Senator William Saxbe as Attorney General following the

    Pub. L.Tooltip Public Law (United States) 90–206 in December 1968. (34 F.R. 2241; 83 Stat. 863).[35] Saxbe had become a Senator on January 3, 1969 and on February 14 the legislation became law when Congress took no action to veto the proposal that raised the salary of top executive branch officials, the judicial branch and members of Congress.[36]

    As with the Knox instance, the clause complication caught both Saxbe and the Nixon administration by surprise after the nomination had been announced.

    Senate Post Office and Civil Service Committee and sharply criticized by the Senate Judiciary Committee.[36]

    Although passage in the House was less controversial than it was in the Senate because the constitutional issues did not dominate consideration, the bill met with other procedural obstacles. At the time, Congress was under siege for what was widely perceived as abuse of members'

    Gale McGee was delaying the franking bill until the Senate-passed post card voter registration bill (S. 352) was put to a House vote. Thus, at first the House inserted franking language in its Saxbe fix bill. On December 3, it suspended its rules to pass the bill 261–129. The Senate then passed the Saxbe fix bill (H.R. 11710) on December 6 without the franking language. The House agreed to the amended bill on December 7.[36]

    On December 10, Nixon officially submitted the Saxbe nomination.

    Robert C. Byrd, who felt the bar was not avoidable by legislation,[36] explained his position at the time: "[The Clause is] so clear that it can't be waived. ... We should not delude the American people into thinking a way can be found around the constitutional obstacle."[40] Saxbe did not resign his Senate seat until January 4, 1974, when his wife became eligible for survivor benefits after the completion of his fifth year of service.[32] This delayed his transition to the Cabinet because the Clause expressly prohibits dual service. Saxbe later wrote that although he needed the additional salary he lost (he was earning $42,500 per year as a senator), he was still willing to serve as Attorney General and would get by financially.[37] His biggest fear was that the fix would be ruled unconstitutional by the Supreme Court several months after he had been in office, and he would have to repay salary already spent.[37]

    Late 20th century

    President Jimmy Carter used the Saxbe fix to appoint Edmund Muskie as Secretary of State.
    Treasury Secretary with the help of out-going President George H. W. Bush
    .

    Subsequently, Jimmy Carter became the first Democratic president to use a Saxbe fix when he appointed Senator Edmund Muskie as his Secretary of State.[2] Cyrus Vance had resigned on April 28, 1980.[45] (Ironically, Muskie had been one of the ten senators voting against Saxbe's confirmation.)[46] Carter nominated Muskie on April 29,[47] and the Senate confirmed Muskie on May 7 by a 94–2 vote.[45][48] Unlike the Knox and Saxbe fixes, the salary reduction to allow Muskie's appointment was temporary, reducing the salary only for the duration of Muskie's tenure.[2] When Carter appointed Representative Abner Mikva to the D.C. Circuit, a lawsuit challenging the appointment based on Ineligibility Clause objections again failed for lack of standing.[49]

    Upon the retirement of Supreme Court Justice

    Warren Burger. According to Greenburg, Michael Carvin used the Ineligibility Clause as a pretext to allow the White House to quietly say no to Hatch.[55]

    On January 5, 1993, S.J.Res. 1, a bill to reduce the salary of the Treasury Secretary from $148,400 to $99,500 (the pre-1989 level), passed by a voice vote in the Senate and by the House on January 6.

    United States Senate Majority Leader George J. Mitchell to the Supreme Court, but Mitchell withdrew his name from consideration for reasons unrelated to his eligibility.[59]

    21st century

    President Barack Obama appointed three sitting Members of Congress to the Cabinet: Hillary Clinton (left), Ken Salazar (center) and Hilda Solis (right). Congress passed Saxbe fixes to make Clinton eligible for appointment as Secretary of State and Salazar as Secretary of the Interior.

    The term "Saxbe fix" reentered the public lexicon in 2008 with the speculation that Senator

    cost of living adjustment statutes, as noted by legal scholar Eugene Volokh on his blog, The Volokh Conspiracy.[54] Before the January 2009 pay increases, secretaries made $191,300 compared to Members of Congress who earned $169,300.[60]

    Without a Saxbe fix, Clinton would have been ineligible to serve in the Cabinet until the conclusion of the 112th United States Congress in January 2013, near the end of Obama's elected term.[54] The Senate passed Saxbe-fix legislation on December 10, 2008, acting by unanimous consent to reduce the Secretary of State's salary back to its January 1, 2007 level of $186,000,[61][62] taking effect at 12:00 noon on January 20, 2009.[61] President George W. Bush signed the resolution into law on December 19,[63] cancelling all emolument increases made or to be made during Clinton's Senate term between noon of January 3, 2007, and noon of January 3, 2013.[61]

    The conservative advocacy group

    State Department employee.[66][67] The suit claims that Clinton is "constitutionally ineligible" to serve as Secretary of State due to the Ineligibility Clause and that Rodearmel cannot be forced to serve under her, as it would violate the oath he took as a Foreign Service Officer in 1991 to "support and defend" and "bear true faith and allegiance" to the U.S. Constitution.[67]

    On February 6, a panel of three judges was appointed to hear the case.[68] On May 20, the Obama administration Office of Legal Counsel filed an opinion with the district court saying that Clinton's appointment did not violate the Ineligibility Clause, and that an "on net" view of the Clause "presents an entirely natural interpretation of the [Constitution's] language."[69] On October 30, 2009, the District Court dismissed the case, stating "Because Rodearmel has failed to allege that Clinton has taken any action—much less an action that has aggrieved him—he does not come within the 'zone of interests' protected by the Secretary of State Emoluments Act."[70]

    Senator

    Pub. L.Tooltip Public Law (United States) 111–1 (text) (PDF)).[71] During Obama's first term there were three Cabinet members serving who were sitting members of the House or Senate when appointed, two of whom (Clinton and Salazar) required Saxbe fixes. The May 2009 Office of Legal Counsel brief also asserted the constitutionality of Salazar's appointment.[69]

    Legality

    Over time, the Saxbe fix has become politically uncontroversial.

    Clinton's inauguration. The fixes that have been enacted for Obama's cabinet have passed in both the House and the Senate without amendment and by unanimous consent.[61][71] Outgoing Republican President George W. Bush signed the Saxbe fixes for both Hillary Clinton and Ken Salazar into law for the incoming Democratic Obama administration.[61][71]

    The constitutionality of the fix has been much debated, however, the U.S. Supreme Court has never directly ruled on it.[72][73] Critical review of the clause begins with a study of the terms in the plain language of the clause: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time . ... " All of the terms have been at issue in past controversies and many of the terms have been well-settled.[74] Historically, the excluded class of individuals affected by the clause has not been an issue: all scholars have agreed that the clause refers exclusively to all members of Congress.[74] The clause uses the verb "elected". If a senator serving under an appointment to fill a vacancy in an unexpired term accepted a nomination to federal office before the expiration of his or her term, this might be an issue.[29]

    The phrase "During the time for which he was elected" has not been controversial.

    Judge despite the Congressional increase of judicial salaries during his previous term.[29] Opinions issued by the Clinton administration Office of Legal Counsel often presupposed the application of the clause,[29] and conceded that "[t]he tradition of interpreting the Clause has been 'formalistic' rather than 'functional'".[77] Another clarification came in 1969, when newly re-elected Representative Melvin Laird was President-elect Nixon's choice for Secretary of Defense and Congress was expected to raise the pay of Cabinet members in the new term.[30] Attorney General Ramsey Clark gave an official opinion, which Laird followed, that Laird could be sworn in and serve in the new term from January 3 to January 20 (when Nixon would take office) without running afoul of the Clause, as long as he joined the cabinet before the pay raise went into effect.[30]

    Arguments for its constitutionality

    One way to interpret the clause is by the

    spirit of the law argument is "net increases".[80] According to conservative constitutional law attorney Bruce Fein, "The so-called fix fits the purpose of the clause like a glove."[81]

    If the Saxbe fix is a solution for the primary problem of self-dealing, a relevant fact is that Congress has not voted to increase any Cabinet salary or benefits since the 1990s, when it granted that power to the president in the form of an across-the-board

    cost of living adjustment by executive order. However, the Ineligibility Clause does not distinguish between increases in emoluments by legislation and increases by executive order.[80] Perhaps the most lenient interpretation of self-dealing was made during the 1973 Saxbe hearings by Duke University School of Law professor William Van Alstyne, who argued that the ineligibility clause only applied to new offices created during a congressional term, not to appointments to existing offices.[40]

    Some scholars think that the phrase "shall have been increased during such time" is ambiguous and allows different interpretations. For instance, it could be interpreted as meaning either "shall have been increased at least once" or "shall have been increased on net". In the latter case the Saxbe fix would be constitutional.[54]

    Arguments against its constitutionality

    Another way to interpret the clause is through the lens of textualism, that is, giving primary consideration to what the law says rather than to its purpose. Most legal scholars who take this view argue that the Saxbe fix does not address the constitutional problem.[82] Because to textualism advocates the language of the rule is an absolute prohibition, law professor and textualist Michael Paulsen has said, a "'fix' can rescind the salary, ... but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls."[15] Most textualists agree that the spirit of the Ineligibility Clause would be addressed by a Saxbe fix, but they dispute that a clause's "spirit" overrides its text.[83][84]

    This view is not confined to textualists; for example, law professors Jack Balkin and Mark Tushnet share it, with Tushnet observing that the Saxbe fix "smacks of clever manipulation" and does not adequately address the issue because "rescinding the increase does not mean that the salary 'shall not have been increased'; it simply means that the salary shall have been both increased and reduced during the term."[85] Some intentionalists interpret the Ineligibility Clause as a safeguard against escalation of the size and scope of the federal government and its corresponding budget, in addition to being a safeguard against self-enrichment. They argue that reverting salary increases does not prevent members of Congress from engaging in conduct that would bloat the government.[80]

    Another argument presented during the Saxbe nomination hearings was that the constitutional framers wrote the Ineligibility Clause to prevent Congress from enacting laws to benefit one of its own members. Any Saxbe fix is such a law and should be disallowed based on this fact alone.[86]

    Challenges

    Once Congress approves a salary reduction and the nominee is confirmed, legal experts conclude that in practice it is unlikely that an appointment would be successfully challenged in the courts. The most likely claimant would be an individual who has been adversely affected by a discretionary decision under the nominee's authority—for example someone denied a

    United States v. SCRAP. In particular, it has been unwilling to grant standing for a generalized constitutional injury other than to a plaintiff who is protected by a statute or when a statute grants standing.[15][87]

    It has already proven difficult to be recognized as having standing when a fix is not used for a controversial appointment. The courts have dismissed suits contesting the appointments of Justice Hugo Black (Ex parte Levitt, 302 U.S. 633 (1937)) and Judge Abner Mikva (McClure v. Carter, 454 U.S. 1025 (1981)). Black and Mikva were members of Congress (Black of the Senate, Mikva of the House of Representatives) prior to appointment and were appointed without a Saxbe fix. In both cases, the courts held that the plaintiff lacked standing to challenge the appointment.[2] Other than these cases, most attempts to gain standing have been considered frivolous lawsuits brought by fringe groups.[81]

    Precedents

    There are several nuances to the Ineligibility Clause that determine the necessity of fixes in specific situations:[2]

    1. It applies to those members who have actually taken their seats, not to those who were elected but not yet sworn in.
    2. According to Marbury v. Madison, "appointed" means at the moment of nomination for civil office, not at the time of approval.[88] Although Chief Justice John Marshall stated that appointments by the president are completely voluntary, there are restrictions on his statutory authority.[14] For example, the duty to commission officers of the United States is enjoined by the constitution and he must nominate with the advice and consent of the Senate.[89]
    3. The bar cannot be evaded by resignation from Congress. In a written opinion of Attorney General Benjamin H. Brewster,[17] the clause applies for the term "for which he was elected," not the time during which the member actually holds office.
    4. According to United States v. Hartwell, "Civil office" is one in which the appointee exercises an authoritative role. It does not apply to temporary, honorific, advisory, or occasional postings.[90] The terms civil office and civil officer are used only once each in the Constitution and civil office is never defined therein.[91]
    5. According to McLean v. United States, "Emoluments" means not only salary, but also includes other benefits such as forage and rations.[92]
    6. Under presidents Lyndon B. Johnson and Jimmy Carter, the United States Department of Justice determined that it did not matter when Congress passed legislation increasing the salary for an office, so long as the former member of Congress was nominated before the salary increase went into effect.[93][94]

    Notes

    1. ^ Yates, p. 166.
    2. ^ a b c d e f g h i Forte, David F. (2008-12-03). "Constitutional Ineligibility: What Does the Emoluments Clause Mean?". The Heritage Foundation. Archived from the original on 2009-02-02. Retrieved 2009-01-24.
    3. ^ a b c Yates, pp. 169–172.
    4. ^ a b Yates, pp. 47–48.
    5. ^ "Article 1, Section 6, Clause 2: Records of the Federal Convention". University of Chicago. 1987. Retrieved 2008-11-26.
    6. ^ a b O'Connor, J. p. 91
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    15. ^ a b c Williams, Pete (2008-11-25). "HRC, State – and the Constitution". First Read. MSNBC. Archived from the original (Blog) on 2009-02-01. Retrieved 2008-11-29.
    16. ^ O'Connor, J. p. 104
    17. ^ a b 17 Op. Att'y Gen. 365 (1882)
    18. ^ O'Connor, J. p. 103
    19. ^ See 2 Decisions of the Comptroller of the Treasury 135 (1896).
    20. ^ a b c d e "Knox Seems Barred From the Cabinet". The New York Times. February 10, 1909. Retrieved January 25, 2009.
    21. ^ O'Connor, J. pp. 124–125.
    22. ^ 43 Congressional Record 2390-403 (1909).
    23. ^ a b c "Knox Relief Bill Passes in Senate" (PDF). The New York Times. February 12, 1909. Retrieved January 25, 2009.
    24. ^ a b "Way Clear For Knox to Enter Cabinet" (PDF). The New York Times. February 16, 1909. Retrieved January 25, 2009.
    25. ^ Greeley, Horace (1911). The Tribune Almanac and Political Register. The Tribune Association. p. 553.
    26. ^ "Senate Confirms Taft's Cabinet" (PDF). The New York Times. March 6, 1909. Retrieved February 6, 2009.
    27. ^ "Cabinet Officers Begin Their Work" (PDF). The New York Times. March 7, 1909. Retrieved February 5, 2009.
    28. ^ 33 Op. Att'y Gen. 88 (1922)
    29. ^ a b c d e Schroeder, Christopher (1996-12-31). "Application of the Ineligibility Clause". Memorandum Opinion for the Counsel to the President. Office of Legal Counsel. Archived from the original (Memo) on 2008-11-17. Retrieved 2008-11-26. The Ineligibility Clause of the Constitution would not bar the appointment of Representative Bill Richardson to serve as United States Ambassador to the United Nations or of Senator William Cohen to serve as Secretary of Defense.
    30. ^ a b c d e Rugaber, Walter (November 2, 1973). "1969 Rise in Cabinet Pay Could Prove Bar to Saxbe". The New York Times. Retrieved February 22, 2009.
    31. ^ a b Kauffman, Tim (November 25, 2008). "Clinton nomination a Constitutional quandary". FedLine. Federal Times. Archived from the original (Blog) on January 23, 2013. Retrieved November 28, 2008.
    32. ^ a b c "Law and Law Enforcement", Congress and the Nation IV, p. 563.
    33. ^ Oelsner, Lesley (December 18, 1973). "Senate, 75 to 10, Votes to Confirm Saxbe as Attorney General". The New York Times. Retrieved February 22, 2009.
    34. ^ "Handing the Ball to Bill – Saxbe". Time. Time Inc. November 12, 1973. Archived from the original (Article) on September 30, 2007. Retrieved November 24, 2008.
    35. ^ a b 2 U.S.C. § 358,
    36. ^ a b c d e f g "General Government", Congress and the Nation IV, p. 803.
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    39. ^ Hearings Before the Committee on the Judiciary, United States Senate, 93d Cong., 1st Sess., on S. 2673 (1973)
    40. ^ a b c Russell, Mary (November 20, 1973). "Robert Byrd Sees Saxbe Job Illegal" (PDF). The Washington Post. Archived from the original (PDF) on February 25, 2009. Retrieved February 18, 2009.
    41. ^ 119 Congressional Record 37,017-26 (1973).
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    43. ^ Appendix, Congress and the Nation IV, p. 1113.
    44. ^ a b c d Kamen, Al (November 19, 2008). "Hillary Clinton's Fix" (Series). The Washington Post; 44 The Obama Presidency: A Transition to Power. Retrieved November 25, 2008.
    45. ^ a b "Foreign Policy", Congress and the Nation V, p. 116.
    46. ^ "Roll-Call Vote in Senate On Saxbe Confirmation". The New York Times. December 18, 1973. Retrieved February 22, 2009.
    47. ^ "Foreign Policy", Congress and the Nation V, p. 119.
    48. ^ "Carter Presidency", Congress and the Nation V, p. 984.
    49. ^ See McClure v. Carter, 513 F.Supp. 265 (D. Idaho 1981), aff'd sub nom. McClure v. Reagan, 545 U.S. 1025 (1981).
    50. ^ a b Molotsky, Irvin (June 28, 1987). "Inside Fight Seen Over Court Choice". The New York Times. Retrieved November 25, 2008.
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    52. ^ Boyd, Gerald M. (July 2, 1987). "Bork Picked For High Court". The New York Times. Retrieved March 6, 2009.
    53. ^ Memorandum for the Counselor to the Attorney General, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, Re: Ineligibility of Sitting Congressman to Assume a Vacancy on the Supreme Court (August 24, 1987)
    54. ^ a b c d e Volokh, Eugene (November 24, 2008). "Hillary Clinton and the Emoluments Clause" (Blog). The Volokh Conspiracy. Retrieved November 25, 2008.
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    67. ^ a b Pickler, Nedra (January 29, 2009). "Lawsuit argues Clinton ineligible for state post". NBC. Associated Press. Retrieved February 21, 2015.
    68. ^ "Rodearmel v. Clinton et al". Justia News. February 6, 2009. Retrieved February 21, 2009.
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    71. ^ a b c d S.J.Res. 3
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    77. ^ Schroeder, Christopher (1996-07-26). "Nomination of Sitting Member of Congress to be Ambassador to Vietnam". Memorandum Opinion for the Counsel to the President. Office of Legal Counsel. Archived from the original (Memo) on 2008-11-17. Retrieved 2008-11-26.
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    84. ^ See also (writing in another context) Frank Easterbrook, What Does Legislative History Tell Us?, 66 Chi.-Kent. L. Rev. 441 (1991): "laws have no 'spirit,' that they are complex compromises with limits and often with conflicting provisions, the proponents of which have discordant understandings."
    85. ISBN 0-691-07035-0.; video interview with Jack Bailkin
    86. ^ O'Connor, J. p. 130
    87. ISBN 0-314-23748-8. Brennan saw standing as little more than a device for ensuring concrete averseness between the parties, see, e.g., Baker v. Carr (per Brennan, J.). But Justice Brennan left the court in 1990, and in cases like Lujan v. Defenders of Wildlife and Steel Co. v. Citizens for a Better Environment
      , the court has repudiated his version of standing.
    88. ^ 5 U.S. (Cranch 1) 137 (1803)
    89. ^ Marbury, 5 U.S. (1 Cranch) at 155, 2 L.Ed. at 66.
    90. ^ 73 U.S. 385 (1868)
    91. ISBN 0-520-21280-0
      .
    92. ^ 226 U.S. 374 (1912)
    93. ^ 42 Op. Att'y Gen. 381 (1969)
    94. ^ 3 Op. Off. Legal Counsel 286 (1979)

    References

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