The Ineligibility 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 encreased during such time. . . .

—Josh Blackman & Seth Barrett Tillman

Introduction

Two provisions in Article I, Section 6, Clause 2 prohibit members of Congress from holding some other federal offices. First, the Ineligibility Clause prohibits a Representative or Senator from being appointed to a federal statutory office “created” during the time for which he was elected or for which the “emoluments” were “increased” during his term. This ineligibility continues for the duration of a member’s elected term, even if he resigns from Congress. Second, the Incompatibility Clause bars a member from concurrently holding certain offices regardless of when those positions were created or whether the compensation was increased. However, if the member resigns, the incompatibility is cured. (See Essay No. 34.) Justice Joseph Story observed that the “reason” for the Ineligibility Clause was to reduce “any improper bias in the vote of the representative, and to secure to the constituents some solemn pledge of his disinterestedness.”¹ However, Story acknowledged that the clause “does not go to the extent of the principle,” as the member can be appointed after his congressional term concludes, “thus leaving in full force every influence upon his mind.”²

History Before 1787

The Ineligibility Clause traces its roots to British statutes enacted in the early eighteenth century. These statutes addressed a well-known problem: The monarch would reward loyal members of the House of Commons with appointments to lucrative positions under the Crown’s control. Parliamentary reformers took steps to limit this practice, which many thought corrupt. The Articles of Confederation likewise barred delegates to Congress from holding certain appointed positions in the national government.³ However, features of the Ineligibility Clause appear to be the Constitutional Convention’s innovations and without precise British or colonial antecedents.

The Constitutional Convention

During the Constitutional Convention, the drafting histories of the Ineligibility and Incompatibility Clauses were closely intertwined.⁴ On June 13, 1787, Edmund Randolph of Virginia presented the Committee of the Whole’s report.⁵ It provided that members of the first and second branches of the national legislature “ought . . . to be ineligible to any office established by a particular State, or under the authority of the U. States . . . during the term of service, and under the national Government for the space of one year after its expiration.”⁶ In other words, members of the House and Senate would be ineligible to hold either state or national government positions. However, that ineligibility did not extend to “those [offices] peculiarly belonging to the functions of the first [or second] branch.” Apparently, members would have remained eligible for certain legislative positions, such as the clerk of each chamber.

On June 22, the Convention debated the Committee of the Whole’s report.⁷ Pierce Butler of South Carolina observed that in Britain, a “man takes a seat in Parliament to get an office for himself or friends, or both; and this is a great source from which flows its great venality and corruption.”⁸ James Madison of Virginia offered a compromise covering only certain positions: “[N]o office ought to be open to a member, which may be created or augmented while he is in the legislature.” Madison’s language was very similar to the language of the Ineligibility Clause as eventually adopted. On this day, no action was taken on Madison’s motion.

On June 23, the Convention deleted the language about ineligibility for state positions. Also, Madison refined his proposal: Members of the legislature would be “ineligible during their term of service, & for one year after—to such offices only, as should be established, or the emoluments thereof, augmented by the Legislature of the U. States during the time of their being members.” Madison warned “that the unnecessary creation of offices, and increase of salaries, were the evils most experienced, & that if the door was shut agst. them, it might properly be left open for the appointt. of members to other offices as an encouragmt. to the Legislative service.”⁹

John Rutledge of South Carolina disagreed. He “was for preserving the Legislature as pure as possible, by shutting the door against appointments of its own members to offices, which was one source of its corruption.”¹⁰ Madison viewed his own motion “as a middle ground between an eligibility in all cases, and an absolute disqualification.”¹¹ During the Virginia convention, Madison would explain the purpose behind his proposal: The Federal Convention “conceived that the great danger was in creating new offices, which would increase the burdens of the people,” and his proposal was “a mean between two extremes. It guards against abuse by taking away the inducement to create new offices, or increase the emoluments of old offices.”¹² On June 23, the Federal Convention voted down Madison’s motion by a vote of 8 to 2.¹³

On August 6, the Committee of Detail delivered a revised version of the clause. Ineligibility would now last “during the time for which [the members of each house of Congress] shall respectively be elected.”¹⁴ This newly added language can be read to suggest that even if a member resigned, the ineligibility would continue until his elected term concluded.

On September 1, David Brearley of New Jersey reported on behalf of the Committee of Eleven. The Ineligibility Clause now provided that “[t]he Members of each House shall be ineligible to any civil Office under the authority of the United States during the time for which they shall respectively be elected.”¹⁵ This proposal was adopted by a vote of 7 to 1 with one state divided.¹⁶

After that vote, Rufus King of Massachusetts moved to restrict the Ineligibility Clauses to “any civil Office under the authority of the United States created during the time for which they shall respectively be elected.”¹⁷ In other words, the prohibition would extend only to new positions created during the member’s term. Roger Sherman of Connecticut suggested that “the incapacity ought at least to be extended to cases where salaries should be increased, as well as created, during the term of the member.”¹⁸ King and Sherman echoed Madison’s “middle ground.” King’s motion failed by a vote of 5 to 5.¹⁹

Hugh Williamson of North Carolina made a related motion: Ineligibility would apply to “any civil Office under the authority of the United States created or the emoluments whereof shall have been encreased during the time for which they shall respectively be elected.”²⁰ This proposal passed by a vote of 5 to 4. The Committee of Style would make several revisions. The prior draft simply referred to a person’s being “ineligible” to hold office. Now, it was made clear that a “senator or representative” could not be “appointed” to “any civil office under the authority of the United States.”²¹ This text would be adopted by the Convention.²²

The Ratification Debates

The Ineligibility Clause would prove to be quite controversial during the ratification debates. Critics of the Constitution argued that this provision was not strong enough to prevent “corruption.”²³ During the Virginia convention, Patrick Henry warned that “[a]fter the first organization of offices, and the government is put in motion, [members of Congress] may be appointed to any existing offices which become vacant.”²⁴ Luther Martin of Maryland wrote that members of Congress would be “unduly placed under the influence of the President,” who has the “power to nominate to all offices” and thereby “expose [members] to bribery and corruption.”²⁵

Federalists defended the clause. In Federalist No. 76, Alexander Hamilton wrote that this provision “provide[s] some important guards against the danger of executive influence upon the legislative body.” Madison tried to downplay the concerns of the Anti-Federalists. He predicted that after the organization of the government, when new members “go to Congress, the old offices will be filled.”²⁶ Madison assumed that new members could not “make any probable calculation that the men [already] in [appointed] office will die, or forfeit their offices.”²⁷ He saw “[t]he chance of [a member’s] getting an office” as “so remote, and so very distant, that it cannot be considered as a sufficient reason to operate on their minds to deviate from their duty.”²⁸

Madison did not entirely persuade his colleagues. The Virginia convention proposed an amendment to the Constitution that would have made members “ineligible to, and incapable of holding, any civil office under the authority of the United States, during the time for which they shall respectively be elected.”²⁹ It did not matter whether the office was newly created or whether the emoluments were increased. Similar proposals were advanced by the New York and North Carolina ratification conventions.³⁰

Early Practice

The first controversy over the Ineligibility Clause arose during the Washington Administration. Senators who were elected for terms that began in 1789 would have been ineligible for any of the judgeships created by the Judiciary Act of 1789. Senator William Paterson’s term would expire on March 3, 1793. Some Senators elected to the First Congress had two-year and four-year terms.³¹ (See Essay No. 16.) Paterson resigned in 1790 to become governor of New Jersey, but his ineligibility for federal positions covered by the prohibition remained in force. President George Washington nominated Paterson to the Supreme Court on February 27, 1793, but Washington quickly realized that Paterson was still within the duration of the original term for which he had been elected as Senator. On February 28, 1793, Washington “declare[d] that [he] deem[ed] the nomination to have been null by the Constitution.”³² Arguably, that nomination would have violated the Ineligibility Clause—at least Washington thought so. He resubmitted the nomination on March 4, 1793, after the ineligibility ended.³³

Over time, as patronage grew, many believed that the Ineligibility Clause proved to be less than fully effective. Between 1789 and 1850, more than thirty constitutional amendments were proposed that would have rendered all members of Congress ineligible to hold appointed federal civil positions during their elected terms, regardless of whether those positions were newly created or whether the emoluments were increased.³⁴ However, none of these proposals was adopted. In 1833, Justice Joseph Story observed that “[p]erhaps there is quite as much wisdom in leaving the provision, where it now is.”³⁵

What Positions Trigger an Ineligibility?

The Ineligibility Clause extends to “any civil Office under the Authority of the United States.” This category likely includes certain appointed positions in the legislative, executive, and judicial branches.³⁶ The authors of this essay contend that this category includes other irregular positions such as holders of letters of marque and reprisal and certain territorial officers, but it does not include state positions.³⁷

The authors of this essay also contend that the President, Vice President, and members of Congress do not hold “civil Office[s] under the Authority of the United States.” It might be argued that if the presidency were covered by the Ineligibility Clause, then George McGovern would have been ineligible for the presidency in 1972.³⁸ During McGovern’s Senate term, Congress approved a pay raise for the President.³⁹ Moreover, Ulysses S. Grant’s Vice President, Henry Wilson, and Harry S. Truman’s Vice President, Alben Barkley, had served in the Senate when the compensation for the vice presidency had been increased.⁴⁰ If the vice presidency was a “civil Office under the Authority of the United States,” then both of these Senators would have been ineligible for that position,⁴¹ but no suggestion that they were ineligible appears to have been raised.

Others disagree and contend that there is no difference between appointed and elected federal positions.⁴² They argue that all such positions are “office[s] under the Authority of the United States.”⁴³ They might also contend that even if the President and Vice President hold an “Office under the Authority of the United States,” they are elected to this position, not appointed, so these two positions would not be subject to the Ineligibility Clause.

A contrary example is the Senate seat that was held by Prentiss Marsh Brown of Michigan.⁴⁴ Brown served in the House when the compensation for members of Congress had been increased. At this time, prior to ratification of the Twenty-Seventh Amendment, it was lawful for Brown, as well as for other elected members of the House and Senate, to receive the authorized increased salary compensation. (See Essay Nos. 30 and 216.) During that House term, Brown was then appointed by his state’s governor to fill a vacant Senate seat. Brown then received, as a Senator, the salary that had been increased while he had served in the House. This appointment, which occasioned no debate on the scope of the Ineligibility Clause, provides some support for the position of the authors of this essay. Again, Brown had been a member of the House. During the time for which he was elected, the compensation for Senators had been increased, and, during that House term, Brown was appointed to the Senate, and it appears that Senator Brown received the increased compensation. Accordingly, the Congressional Research Service contended that that the Ineligibility Clause only extends to appointed positions created by Congress.⁴⁵

Furthermore, the inclusion of the word “civil” would exclude military positions from the scope of the Ineligibility Clause.⁴⁶ This provision would not bar a member of Congress from being commissioned as a military officer.⁴⁷

What Does It Mean for Emoluments to Have Been Increased?

The Ineligibility Clause applies if “the Emoluments [of a covered office] shall have been encreased during such time” “for which [the member] was elected.” The term “emoluments” refers to “every species of compensation or pecuniary profit derived from a discharge of the duties of the office.”⁴⁸ (See Essay No. 76.)

The concept of increased emoluments was raised in an unusual case concerning Justice Hugo Black.⁴⁹ In 1927, Black had been elected to the Senate from Alabama and he was reelected in 1932. In March 1937, while Black was in the Senate, a new pension was established for Supreme Court justices.⁵⁰ Under the law, Justices could “retir[e] from regular active service on the bench” and still receive their full salary.⁵¹ Black was appointed to the Supreme Court in August 1937. If the emoluments of this office had been increased, then Black was not eligible to receive an appointment to the Supreme Court. Black’s appointment was challenged by a pro se litigant in Ex parte Levitt (1937).⁵² However, the Supreme Court ruled that the plaintiff did not have legal standing to bring the case. Therefore, the Court did not reach the merits.

At the time, the Roosevelt Administration concluded that the appointment did not violate the Ineligibility Clause.⁵³ Many Senators who voted to confirm Black reached the same conclusion.⁵⁴ However, some Senators argued that Black was ineligible.⁵⁵ More recently, one scholar contended that the new pension was best viewed as an increase in emoluments.⁵⁶ Another wrote that there was no ineligibility because Black would receive the pension at the age of seventy, long after his Senate term concluded.⁵⁷

The Office of Legal Counsel (OLC) within the Department of Justice addressed a related issue. In 1979, Representative Abner Mikva was appointed to a federal judgeship. After Mikva was appointed, but still during his elected term, the salary for that judgeship was increased. OLC ruled that Mikva could lawfully “be appointed to a judgeship as to which the emoluments may be increased subsequent to his appointment,” but during his elected term.⁵⁸ The Ineligibility Clause, OLC found, applies only “when an increase in the emoluments of an office precedes an appointment of that office.”⁵⁹

The Saxbe Fix

It is clear enough that an ineligibility is created when Congress increases the emoluments of an office, but what happens if, after Congress increases the emoluments, Congress subsequently decreases the emoluments before the member is appointed to an office? In other words, can Congress “roll back” an ineligibility caused by an earlier increase in emoluments? The executive branch has taken different positions on this question over the years.

William Saxbe was elected to the Senate from Ohio for a term that began in January 1969 and would conclude in January 1974. In 1969, the compensation for the Attorney General position was increased. In 1973, President Richard Nixon intended to nominate Saxbe to serve as Attorney General, but Saxbe would have been ineligible for that position.

Acting Attorney General Robert Bork testified that Congress could roll back the salary increase to remove the ineligibility.⁶⁰ Bork contended that the purpose of the Ineligibility Clause was to ensure that the “expectation of a higher salary” will not influence members of Congress, but there will be no such expectation if the member knows he will “have to accept the lower salary.” Congress reduced the Attorney General’s salary to the pre-1969 level.⁶¹ After the salary was reduced, Nixon nominated Saxbe. Saxbe was confirmed, though some Senators argued that an ineligibility could not be set aside in this manner.⁶² This “rollback” work-around became known as the Saxbe Fix.

However, in 1987, OLC concluded that a rollback would not remove the ineligibility.⁶³ The OLC opinion stated that Bork’s prior position “simply ignore[d] the plain language of the Ineligibility Clause.”⁶⁴ Moreover, the Bork approach grants the “executive the power to appoint legislators to lucrative and prestigious executive and judicial offices” even though the Framers had “tried to limit the instances in which the executive could offer such enticements to legislators.”⁶⁵ The Saxbe Fix would “largely render [the Ineligibility Clause] a nullity.”⁶⁶

President Ronald Reagan had considered nominating Senator Orrin Hatch of Utah to replace Justice Lewis Powell.⁶⁷ However, Hatch was in Congress when the compensation for Supreme Court Justices was increased, and his appointment to the high court would have been during this elected term. Hatch was therefore deemed ineligible for the Supreme Court. Despite this opinion, in 1993, the George H.W. Bush Administration used a Saxbe Fix to appoint Senator Lloyd Bentsen to serve as Secretary of the Treasury.⁶⁸

Two decades later, OLC would reverse course. Hillary Clinton had been elected to the Senate from New York in 2000 and reelected in 2006. In 2007, during Senator Clinton’s elected term, the compensation for the Secretary of State position had been increased through a cost of living adjustment.⁶⁹ In December 2008, President-elect Barack Obama announced his intent to nominate Clinton as Secretary of State. That month, Congress reduced the compensation for the Secretary of State position to the pre-2007 level.⁷⁰ In May 2009, OLC determined that the Saxbe Fix was valid.⁷¹ Even though the compensation had been increased and then decreased, “on net,” it was unchanged.⁷² Moreover, OLC found that “[o]n at least seven occasions since the Civil War, Congress ha[d] rolled back the salary paid for service in an office, and subsequent to such rollbacks, the Senate has confirmed and the President has appointed a member of Congress who would otherwise have been barred from that office.”⁷³ A Foreign Service Officer challenged Clinton’s appointment, but he was found to lack legal standing.⁷⁴

Open Questions

• What is the date to determine whether there is an Ineligibility Clause violation: (i) when the person was nominated; (ii) when the Senate provided advice and consent; (iii) when the President completed the appointment; (iv) when the officer received his commission; or (v) when the officer accepts his position? Marbury v. Madison (1803) suggests the answer is the third option.⁷⁵ However, President Washington, in light of his actions regarding the Paterson nomination, may have viewed the first or second as the starting point. After all, Washington could simply have delayed completing the appointment until after March 3, 1793.
• Assume that Congress uses a Saxbe Fix to remove an ineligibility and the Senator is then appointed to the office. What happens if Congress, subsequent to the appointment, restores the salary increase? OLC opined that “post-appointment legislation restoring the salary of an office to its pre-rollback level would not promote the ability of the executive corruptly to wield influence over the legislative branch insofar as the appointment would already have been completed.”⁷⁶ What if the statute that is used to effectuate the salary rollback also states that, post-appointment, the same salary increase should go back into effect? If this stratagem or work-around is ineffective, can Congress achieve a valid Saxbe Fix if it enacts two separate statutes and passes them concurrently with one another? What if Congress passes the two separate statutes one after the other, but both are enacted prior to the appointment? Are these and other constitutional work-arounds consistent with the Constitution or with the rule of law generally?
• The Ineligibility Clause is framed in the passive voice. What happens if Congress authorizes the President to establish a new position and the President establishes the position during a subsequent Congress? For the purposes of determining “ineligibility,” when was the position “created”: when the statute was enacted, when the statute went into effect, or when the President established the position per congressional authorization?
• The Ineligibility Clause is the only provision in the Constitution of 1788 to use the phrase “Office under the Authority of the United States.” What positions (if any) are in this category but are not “office[s] under the United States,” which is the language used in the neighboring Incompatibility Clause and elsewhere in the Constitution?⁷⁷ What positions (if any) are “Office[s] under the United States” but not “Office[s] under the Authority of the United States”?⁷⁸ Are federal civil servants in either category? Are the Clerk of the Supreme Court and the clerks of the other federal courts? Are the Clerk of the House and the Secretary of the Senate? Although these latter positions arguably are filled by “appointment,” they are not filled under the aegis of the Appointments Clause or by the heads of executive branch departments acting under the Inferior Office Appointments Clause.⁷⁹ Are these positions covered by the Ineligibility Clause?
• Assume that a Senator-elect or Representative-elect does not attend Congress, does not take his Article VI oath, and does not become a member of Congress. Further assume that during the term for which he was elected, Congress creates a new office or increases the emoluments of an extant office. Does the Ineligibility Clause bar the member-elect from being appointed to that office?
• Is an Ineligibility Clause violation a “qualification” like citizenship, age, and inhabitancy or residence, or is it somehow different? Is an Incompatibility Clause violation a “qualification”? Federalist No. 52 explained that holding an incompatible office is a disqualification vis-a-vis House membership.
• OLC has pointed to a series of seven post-Civil War appointments that had gone forward using a Saxbe Fix. The first such statutory salary rollback was in 1876. Is this a persuasive history of the legitimacy of the Saxbe Fix given that the Ineligibility Clause is a provision of the Constitution of 1788?

1. 2 Story’s Commentaries § 864. ↩︎
2. Id. ↩︎
3. Articles of Confederation, art. V, § 2. ↩︎
4. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part VI: The Ineligibility Clause, 64 S. Tex. L. Rev. 209 (2025). ↩︎
5. 1 Farrand’s 235. ↩︎
6. Id. ↩︎
7. Id. at 377. ↩︎
8. Id. at 379; Articles of Confederation, art. V, § 2. ↩︎
9. 1 Farrand’s 386. ↩︎
10. Id. ↩︎
11. Id. at 388. ↩︎
12. 3 Elliot’s 370. ↩︎
13. 1 Farrand’s 390. ↩︎
14. 2 Farrand’s 180. ↩︎
15. Id. at 483. ↩︎
16. Id. at 484. ↩︎
17. Id. at 487. ↩︎
18. Id. at 490. ↩︎
19. Id. at 491–92. ↩︎
20. Id. at 487, 492. ↩︎
21. Id. at 593. ↩︎
22. Id. at 614. ↩︎
23. 3 Farrand’s 313. ↩︎
24. Id. ↩︎
25. Storing 2.4.48. ↩︎
26. 3 Farrand’s 311, 315. ↩︎
27. Id. ↩︎
28. Id. at 315–16. ↩︎
29. 3 Elliot’s 659. ↩︎
30. 1 Elliot’s 330; 2 Elliot’s 245. ↩︎
31. Art. I, § 3, cl. 2. ↩︎
32. Message from George Washington to the Senate, with Jefferson’s Note to Washington (Feb. 28, 1793), https://perma.cc/MXN9-LD55. ↩︎
33. Letter from Tobias Lear to Thomas Jefferson, with Jefferson’s Note (Feb. 28, 1793), https://perma.cc/CM84-PQH7. ↩︎
34. Comment, The Ineligibility Clause’s Lost History: Presidential Patronage and Congress, 1787–1850, 123 Harv. L. Rev. 1727 (2010). ↩︎
35. 2 Story’s Commentaries § 864. ↩︎
36. Tillman & Blackman, Offices and Officers of the Constitution, Part VI, supra at 213. ↩︎
37. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part II: The Four Approaches, 61 S. Tex. L. Rev. 321, 394 (2022). ↩︎
38. Tillman & Blackman, Offices and Officers of the Constitution, Part VI, supra at 235. ↩︎
39. Act of Jan. 17, 1969, Pub. L. No. 91-1, 83 Stat. 3. ↩︎
40. 42nd Cong. Sess. III, ch. 224–226, 17 Stat. 485 (1873); Act of January 19, 1949, c. 2, § 1(a), 63 Stat. 4. ↩︎
41. Josh Blackman & Seth Barrett Tillman, In Trump v. Anderson, the Respondents’ Theory Would Render Unconstitutional Every Speaker and President Pro Tempore Since 1789, as Well as President Grant’s VP and Presidential Candidate George McGovern, Volokh Conspiracy (Feb. 4, 2024), https://perma.cc/V2F6-JLUA. ↩︎
42. Rick Hasen, Keisler and Bernstein: Trump’s Reply Brief “Officer” and “Office” Arguments Miss the Mark, Election Law Blog (Feb. 26, 2024), https://perma.cc/M3BY-TNXN. ↩︎
43. David Froomkin & Eric Eisner, Officers (Jan. 6, 2025), https://ssrn.com/abstract=5029416. ↩︎
44. Tillman & Blackman, Offices and Officers of the Constitution, Part VI, supra at 239–40. ↩︎
45. Morton Rosenberg, Cong. Rsrch. Serv., Applicability of the Emoluments Clause (Article I, Section 6, Clause 2) of the Constitution to the Office of Vice-President 9–10 (1973), https://perma.cc/7RCT-PXUT. ↩︎
46. 2 Story’s Commentaries § 789. ↩︎
47. United States v. Lane, 64 M.J. 1, 8 (U.S. Court of Appeals for the Armed Forces 2006), reversing 60 M.J. 781 (U.S. Air Force Criminal Appeals 2004) (per curiam). ↩︎
48. Hoyt v. United States, 51 U.S. (10 How.) 109 (1850). ↩︎
49. William Baude, The Unconstitutionality of Justice Black, 98 Tex. L. Rev. 327 (2019). ↩︎
50. Act of March 1, 1937, ch. 21, 50 Stat. 24. ↩︎
51. Id. ↩︎
52. 302 U.S. 633 (1937) (per curiam). ↩︎
53. Baude, supra at 332. ↩︎
54. John F. O’Connor, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89, 114–17 (1995). ↩︎
55. 2 Deschler’s Precedents, ch. 7, § 13.4. ↩︎
56. Baude, supra at 334. ↩︎
57. Todd B. Tatelman, Cong. Rsrch. Serv., R40124, The Emoluments Clause: History, Law, and Precedents 6 (2009). ↩︎
58. 3 Op. O.L.C. 286, 287 (1979), https://perma.cc/C7GF-C9SP. ↩︎
59. Id. ↩︎
60. Office of the Attorney General: Hearing on S. 2673 Before the S. Comm. on Post Office and Civil Service, 93d Cong. 11 (1973). ↩︎
61. Pub. L. No. 93-178, 87 Stat. 697. ↩︎
62. Mary Russell, Robert Byrd Sees Saxbe Job Illegal, Wash. Post, Nov. 20, 1973, https://perma.cc/XL6G-KHZE. ↩︎
63. Charles J. Cooper, Memorandum for the Counselor to the Attorney General, Re: Ineligibility of a Sitting Congressman to Assume a Vacancy on the Supreme Court, Office of Legal Counsel (Aug 24, 1987). ↩︎
64. Id. at 6. ↩︎
65. Id. ↩︎
66. Id. at 7. ↩︎
67. Irvin Molotsky, Inside Fight Seen Over Court Choice, N.Y. Times, June 28, 1987. ↩︎
68. Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 Stanford L. Rev. 907 (1994). ↩︎
69. Eugene Volokh, Hillary Clinton and the Emoluments Clause, Volokh Conspiracy (Nov. 24, 2008), https://perma.cc/YGY2-PNSA. ↩︎
70. Pub. L. No. 110-455, 122 Stat. 5036. ↩︎
71. 33 Op. O.L.C. 201, 205–06 (2009), https://perma.cc/6BDT-BPQP. ↩︎
72. Id. at 205–06. ↩︎
73. Id. at 217. ↩︎
74. Rodearmel v. Clinton, 666 F. Supp. 2d 123 (D.D.C. 2009). ↩︎
75. 5 U.S. 137 (1803). ↩︎
76. 33 Op. O.L.C. at 216. ↩︎
77. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part IV: The ‘Office . . . Under the United States’ Drafting Convention, 62 S. Tex. L. Rev. 455 (2023). ↩︎
78. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part V: The Elector Incompatibility, Impeachment Disqualification, Foreign Emoluments, and Incompatibility Clauses, 63 S. Tex. L. Rev. 237 (2024). ↩︎
79. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349 (2023). ↩︎