Applicability of Ineligibility Clause to Appointment of
Congressman Tony P. Hall
The Ineligibility Clause of the Constitution would not bar the President from appointing Congressman
Tony P. Hall as United States Representative to the United Nations Agencies for Food and Agricul-
ture, with the rank of Ambassador.
May 30, 2002
MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT
You have asked for our opinion whether the Ineligibility Clause, U.S. Const.
art. I, § 6, cl. 2, would bar the President from appointing Congressman Tony P.
Hall as United States Representative to the United Nations Agencies for Food and
Agriculture, with the rank of Ambassador. As we previously advised you orally,
we believe that the Ineligibility Clause would not bar the appointment.
Under the Ineligibility Clause, “[n]o 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 encreased during such time.” U.S. Const. art. I, § 6, cl. 2.
Congressman Hall’s current term began January 3, 2001, see U.S. Const. amend.
XX, § 1; 146 Cong. Rec. D1228 (Dec. 15, 2000), and he thus cannot be appointed
to an office “the Emoluments whereof” were raised after that date. 1
The office of United States Representative to the United Nations Agencies for
Food and Agriculture was created under 22 U.S.C. § 287(d) (2000), a section of
the United Nations Participation Act providing that the President may appoint
“such . . . persons as he may deem necessary to represent the United States in
organs and agencies of the United Nations.” Under 22 U.S.C. § 287(g), “[a]ll
persons appointed in pursuance of authority contained in this section shall receive
compensation at rates determined by the President upon the basis of duties to be
performed but not in excess of rates authorized . . . for chiefs of mission, members
of the Senior Foreign Service, and Foreign Service officers occupying positions of
equivalent importance.” The President has delegated to the Secretary of State his
authority to fix this compensation, see Memorandum for the Secretary of State,
from President William J. Clinton, Re: Delegation of Authority on Rates of
Compensation for U.S. Representatives to the United Nations, 62 Fed. Reg. 18,261
(Apr. 15, 1997), and the Secretary of State in turn has delegated such “manage-
1
We do not address here whether a rollback of a salary increase can satisfy the Ineligibility Clause.
Compare Appointment of Member of Congress to a Civil Office, 3 Op. O.L.C. 286, 289-90 (1979)
(accepting the validity of such rollbacks), with 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 (Aug. 24, 1987) (“1987 Opinion”)
(rejecting the validity of such rollbacks).
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Applicability of Ineligibility Clause to Appointment of Congressman Tony P. Hall
ment-related functions” to the Under Secretary of State for Management, see
Delegation of Authority No. 198 (Sept. 16, 1992).
The last occupant of the office was former Senator George S. McGovern, who
left the position on September 27, 2001. 2 At the beginning of Senator McGovern’s
service, the responsible official at the State Department assessed the “duties to be
performed” by Senator McGovern and determined that he should receive the pay
of a “Minister-Counselor” in the Senior Foreign Service compensated at a rate
equivalent to Level 5 of the Executive Schedule (“FE-MC 5,” which is equivalent
to “ES 5”). See Exec. Order No. 12293, § 4, 3 C.F.R. § 137 (1982), reprinted in 22
U.S.C. § 3901 note (2000). On two recent occasions, Presidents have exercised
their authority under 5 U.S.C. § 5382 to raise the salary specified for Level 5 of
the Executive Schedule, to which the FE-MC 5 pay is tied. The first increase was
ordered December 23, 2000, and took effect January 14, 2001, Exec. Order
No. 13182, 3 C.F.R. § 330 (2001); the second was ordered December 28, 2001,
and took effect January 13, 2002, Exec. Order No. 13249, 3 C.F.R. § 832 (2002).
We will assume that one or both of these increases should be deemed to have
occurred during the time for which Congressman Hall was elected. 3 If the
“Emoluments” of the office of United States Representative to the United Nations
Agencies for Food and Agriculture include an FE-MC 5 salary, then that office is
one “the Emoluments whereof . . . have been encreased” during the time for which
Congressman Hall was elected.
We do not believe, however, that the FE-MC 5 pay or any other salary can
properly be seen as the emoluments of this office. On the contrary, the office itself
has no fixed emoluments. The President or his delegate is free to set any level of
pay he deems suitable for the duties he expects the particular appointee to perform,
as long as the pay does not exceed the statutory ceilings. Therefore, if appointed,
Congressman Hall will not necessarily succeed to the same compensation that
Senator McGovern was receiving. Indeed, the instrument that directed how much
Senator McGovern was to be paid was a “Notification of Personnel Action,”
which was personal to him, rather than an order referring generally to the pay of
the office. Section 287(g) calls for the President or his delegate to set the pay of
2
As we understand the facts, only one other person—Millicent Fenwick, during the 1980s—has
held the position of United States Representative to the United Nations Agencies for Food and
Agriculture, with the Senate-confirmed rank of Ambassador. We understand that the paperwork
showing how her pay was fixed no longer exists. For the facts set out in this memorandum, we rely on
the Department of State.
3
Arguably, the relevant date for the first increase was the date on which the President issued his
order, which preceded Congressman Hall’s current term. But cf. Member of Congress—Appointment to
Civil Office Prior to Pay Increase, 42 Op. Att’y Gen. 381 (1969) (under a statute providing for an
effective date after a report to Congress and a waiting period to allow congressional action, the relevant
date was the date on which the increase took effect). Moreover, because the office was vacant at the
time of the second increase and because (as explained below) the pay of the office must be set each
time a new appointee assumes the office, arguably the pay of the office was not tied to the FE-MC 5
rate, or any other rate, at the time of the second increase.
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Opinions of the Office of Legal Counsel in Volume 26
“[a]ll persons appointed in pursuance of authority contained in” section 287, and
this compensation pertains to the “person[],” not to the office.
This is not a case in which the President raised the pay for a class of offices, in
which the office in question was included. Cf. Appointment of Member of Con-
gress to a Civil Office, 3 Op. O.L.C. at 286-87 (judicial salaries); 1987 Opinion,
supra note 1, at 1 n.1 (same); Member of Congress—Appointment to Civil Office
Prior to Pay Increase, 42 Op. Att’y Gen. 381 (1969) (salaries of cabinet officers).
Nor even is it a case in which the statute calls on the President to set the salary for
a specified office. Cf. Memorandum for the Files, from William H. Rehnquist,
Assistant Attorney General, Office of Legal Counsel, Appointment of Congress-
man to the Office of Director of the Office of Economic Opportunity at 1 (Apr. 14,
1969) (“1969 Memorandum”) (third attachment to Letter for Edward L. Morgan,
Deputy Counsel to the President, from William H. Rehnquist, Assistant Attorney
General, Office of Legal Counsel (Apr. 14, 1969)) (the statute required the
President to fix the salary of the Director). Instead, the President is to fix the salary
of a “person[]” appointed to an office that the President largely defines. Under the
statute here, the President or his delegate is to set a salary each time a person is
appointed.
To be sure, it would not be an unnatural reading of the Ineligibility Clause if
the salary paid to Senator McGovern were considered the emoluments of the
office of United States Representative, within the meaning of the Clause. That
salary was, after all, actually paid for Senator McGovern’s work in the office.
Nevertheless, we believe that, on the better view of the Ineligibility Clause, this
salary does not constitute the emoluments of the office because the office does not
continue to carry that salary after Senator McGovern’s resignation. The President
or his delegate will have to act affirmatively to set a salary when Senator McGov-
ern’s successor is appointed and will have the discretion to set the salary for the
next occupant of the office at any rate that does not exceed the salary cap. 4 The
Ineligibility Clause was designed to limit the danger that offices might be created
or their emoluments increased “in order to gratify some members” of Congress,
1 The Records of the Federal Convention of 1787, at 380 (Max Farrand ed., rev.
ed. 1966) (statement of James Madison), but this danger, insofar as it arises from
action taken with respect to an office before a member’s appointment, exists only
if the prior action would carry over to the office when the member assumes it.
Here, although prior action raising Senator McGovern’s salary arguably might
4
In our 1969 Memorandum, the President was to fix the compensation of the Director of the Office
of Economic Opportunity (“OEO”) at a level not exceeding that for the Director of the Bureau of the
Budget. The Budget Director’s salary had been raised during the time for which a prospective Director
of OEO had been elected to Congress, and the 1969 Memorandum found that if the Director of the
OEO received a salary at the new ceiling, the Ineligibility Clause would be violated. Id. at 1-2. We take
it, however, that once the President had set a salary for the office of OEO Director, that salary would
have continued to apply to successors in the office, unless the President acted to change his earlier
decision.
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Applicability of Ineligibility Clause to Appointment of Congressman Tony P. Hall
lead to some expectations about the salary to be paid to Congressman Hall, see
119 Cong. Rec. 38,331 (1973) (letter of then-Professor Stephen G. Breyer, arguing
that past salary increases, even if not given to an appointee, make future increases
likely), this expectation is, in the end, a matter of speculation. Until the President
acts or his delegate acts, there are no emoluments attached to the office in
question.
JAY S. BYBEE
Assistant Attorney General
Office of Legal Counsel
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