When the American colonies first clashed with Britain over taxation, much of their frustration focused on Charles Townshend and, later, Frederick North. Both men served simultaneously as members of Parliament and as Chancellor of the Exchequer. In American terms, this would be like someone serving as a senator while also acting as Secretary of the Treasury, holding positions in both the legislative and executive branches at the same time.
Understanding that the separation of powers protects the people from governmental overreach, our Founders included in the Constitution, Article I, Section VI, Clause 2, which reads, “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 United States shall be a Member of either House during his Continuance in Office.”
James Madison articulated the principle behind this in The Federalist Papers’ No. 51 when he wrote, “The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means, and personal motives, to resist encroachments of the others.”
To preserve independence among the branches, the clause contains two parts: the Incompatibility Clause and the Ineligibility Clause.
The Incompatibility Clause is the easiest to explain. Simply put, members of Congress cannot simultaneously hold another federal office. A senator cannot also be Secretary of the Treasury. If a member of Congress is appointed to an executive position, they must resign their seat in Congress.
The Ineligibility Clause includes an additional safeguard. Members of Congress may not accept positions that were created during their term in Congress or that had their salaries increased during that time. The goal was to prevent corruption and stop Congress from creating jobs or boosting salaries to benefit its own members after they left office. For example, Congress cannot create a new federal judgeship and then immediately appoint one of its own members to fill it. Unlike the Incompatibility Clause, resignation cannot fix this; the member must wait until his or her term expires.
The courts have rarely intervened in disputes over these clauses, generally expecting Congress to police itself. However, there have been a few noteworthy cases.
In 1937, Congress passed a law allowing Supreme Court justices to retire with a full pension after the age of 70, hoping to encourage older justices to step down. Later that year, President Franklin D. Roosevelt appointed Sen. Hugo Black to the Supreme Court. Because Black had been a senator when the pension law passed, a former U.S. assistant attorney general challenged the appointment under the Ineligibility Clause. The high court dismissed the challenge, saying the complaint came from a private citizen and, unless he was in danger as a result of the action, then he could not petition the court. With no valid challenger, Black remained on the Court as an influential justice.
More commonly, Congress has used what became known as the “Saxbe fix.” On Oct. 20, 1973, Attorney General Elliot Richardson resigned during the Watergate “Saturday Night Massacre.” President Nixon selected Sen. William Saxbe of Ohio to replace him. But Saxbe had been in the Senate when it approved a salary increase for the Attorney General from $35,000 to $60,000, making him ineligible. To comply with the Constitution, Congress rolled back the salary to its earlier level, enabling Saxbe to accept the position.
This workaround has been used by presidents both before and after Nixon. When Barack Obama won the presidency in 2008, he wanted Hillary Clinton to serve as Secretary of State. However, Clinton, as a senator from New York, had voted for a pay raise for Cabinet secretaries. To resolve this, Congress lowered only the Secretary of State’s salary, allowing her to take the office.
Questions have sometimes risen concerning military officers serving in Congress. A longstanding practice avoids violating the Incompatibility Clause by placing members with military backgrounds into an inactive duty status.
The Ineligibility and Incompatibility clauses reflect our Founders’ determination to prevent the concentration of power by keeping the branches of government separate and strong enough to counterbalance one another. Their continued application, sometimes rigidly, sometimes creatively, shows how that constitutional design still shapes our government today.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@gmail.com. Thanks to Southwest Ledger for sharing his column.
