The Emoluments Clause: History, Law, and Precedents (CRS Report for Congress)
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| Release Date |
Jan. 7, 2009 |
| Report Number |
R40124 |
| Report Type |
Report |
| Authors |
Todd B. Tatelman, Legislative Attorney |
| Source Agency |
Congressional Research Service |
Summary:
With the announcements by President-elect Barack Obama that he intends to nominate several Members of Congress to various positions in the Executive Branch, questions regarding their constitutional eligibility in light of the plain language of the Emoluments Clause have been raised. This report provides an historical review of the Emoluments Clause, focusing on the debates at the time the clause was drafted, as well as the precedents adopted by Congress and the executive branch with respect to nominations where the issue has arisen.
The report also contains a legal analysis of the issues raised by the clause and the so-called "Saxbe Fix" â whereby Congress enacts a statute reducing the salary of the executive branch position to the amount that was paid before the nominee with a potential conflict assumed his legislative office. Application of the clause to the President-elect's current designated appointments indicates that "Saxbe Fix" legislation has been adopted for Senator Clinton, is pending for Senator Salazar, and may be required for Representative Solis before they can receive their respective positions.
The report also addresses the issue of Article III standing to bring a court challenge to either an appointment, confirmation, or the "Saxbe Fix" legislation. Finally, the report raises an argument based on the fact that the emoluments increase for Cabinet-level positions has been consistently issued via Executive Order, and implements a preexisting statutory system authorizing regular annual pay adjustments for government employees. As such, it may be possible to argue that the salary increase is not the type of increase in emoluments that ought to trigger application of the constitutional provision.
