Cheap Constitutional Cheat

George stomped his boots on the wooden porch to remove January’s snow and the traces of New Jersey mud he had picked up between the hitching post and the small pub.  The sixty-one year-old mountain of a man was dwarfed only by the legends of his accomplishment.  As he stepped inside, he was greeted with enthusiasm.

“Mr. President!” someone shouted.

“To the President!” shouted another.

“Here here!” echoed the reply as the men held their tankards upward in respect of the man who had done so much to free them from their European monarch.

“Thank you, all.”  George tipped his hat to them, revealing a full head of formerly red hair, which he believed, looked better powdered than the gray to which it had faded.  He hung his three-cornered hat on a post by the door and spoke to the bartender,  “Barbados Rum, if you have it.  And where is Governor Paterson?”

“Over here, Mr. President.  We’ve a good table reserved in the back room.  And don’t worry.  I made sure our fine pub had your favorite rum on hand.”  William Paterson was like most men of the day, shorter than his President.  He also shared the curse of the beginnings of gray hair showing through his once auburn coiffure.  It came with being 48 years old in 1793 as coloring products for men were still years away from being in style.  After exchanging greetings, the men retired to the back room with their drinks in hand.

“You said you had urgent business for me?”

“Yes, William,” George said as his mug thumped against the table.  “I’ll cut to the chase, I need you on the Supreme Court.”

“I’m confused.  Why now?  Why me?”

“The timing is really Thomas Johnson’s fault.  His health inspired him to resign on the sixteen.  I would have preferred him to share his frailties with me back in 1791 before he took the job in the first place, but that didn’t happen.  But it has happened now.  So that leaves our country a Justice short, so we need you.”  George took another sip of rum.  “That’s good stuff.”

“Sorry to hear Thomas’ health is poor.  But I’m afraid I can’t accept the position—I’m not qualified.”

“Ridiculous!  Your credentials are beyond reproach.  You were a patriot throughout the revolution.  You were Attorney General of New Jersey—the most prominent lawyer in the state.  You served at the Constitutional Convention—why you were the one who proposed the solution for equal representation for each state.  You just about wrote the Constitution!  As a Justice, you would make sure our country remains true to the principles in that blessed document.  What do you mean, you’re not qualified?”

“I already hold an office.”

“Being Governor of New Jersey does not disqualify you from accepting a nomination to the Supreme Court.  Of course, I understand if you’d rather remain Governor and forgo being a Justice.”

“Oh no, Mr. President.  I want to be a Supreme Court Justice more than anything.  I believe I’ve been called by God for that specific purpose.”

“William,” said George, who then paused to take another sip of rum.  He hardened his gaze and spoke sternly, “You’re talking in circles.  Explain to me why you can’t accept the position without the ambiguity—lest you try our friendship beyond its limits.”

“Yes, Mr. President.  I was previously elected as a Senator for New Jersey.  Article 1, Section 6 , Clause 2 is quite clear.  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 …”

“But, William, you left that Senate position to take up service as the Governor of New Jersey.”

“That’s true.  But the Governorship is not a civil office subject to the authority of the United States.  The time I was elected to office of Senator doesn’t end until the third of March of this year, 1793.”

George’s expression softened, as he completely understood William’s objections.  “Oh, so that is a problem.  I did take an oath to preserve, protect, and defend the Constitution to the best of my ability.  All oaths are sacred and should never be broken.  But a President’s character should always be above reproach–it would open the door for future problems.  But, I’ve already nominated you to Congress.  What do I do now?”

“Oh dear, that is another problem.  Sir, you need to retract that nomination until after my Senate time has expired—after which, I’ll eagerly report for duty.”

“Yes, that is the only solution.  Certainly, I understand.  But I can’t help but to muse about that clause.  Was it really intended to prevent the most qualified man in the country from assuming his position as a Justice?”

“Not really.  But the godly men who assembled to craft our Constitution knew that we had to have checks and balances throughout the document to prevent future generations from copying the oppressive practices of the ‘royal’ lineages in Europe.  If left unchecked, we could find ourselves with professional public-servants …”

“That is ridiculous.   How could they attend to the businesses that support their families?”

“They could create a level of pay and privileges that would elevate their life styles using the power of taxes on the merchants and producers of the country.”

“Sounds more like a system for highway men than legislatures.”

“Yes, Mr. President.  A republic can be a fragile thing.  Of course, another solid check on such corruption is the second half of that same clause:  ‘or the Emoluments whereof shall have been increased during such time,’ thus restricting any Senator or Congressman from ever holding an office that has been created or given a salary or benefits, or even increasing the salary or benefits of an existing office.”

“I see.  I remember some of that discussion.  James Madison was very concerned about people using an elected office as a gateway to enrich their own life, with no regard to national service.  I still don’t completely understand how unethical people could ever manage to win the hearts and minds of the voting people.”

“Certainly not our in generation.  We’ve paid too much for the freedoms we enjoy today to toss them away.  But it is possible that future generations could be enticed by office seekers who might promise them something for nothing, only to loot the taxpayers in the process.”

“I pray you’re wrong.  A person who believes they can have something for nothing is either a criminal or a fool.  America is better than that.”

———————

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

As clear as the language is in our Constitution, some administrations have chosen to violate it.

In 1968 William Saxbe was elected to the U.S. Senate.  In 1973—before his time was complete—Richard Nixon appointed him U.S. Attorney General, after firing Elliot Richardson who disagreed with him over the Watergate Scandal.
Whatever motivation Richard Nixon had to have a more cooperative Attorney General in power is open to speculation.  Nixon convinced Congress to assist him in violating Article 6, Section 1, Clause 2 by reducing the salary to the Attorney General to the level it was before Saxbe’s term in the Senate had begun.  This cheap Constitutional cheat has been known ever since as the “Saxbe’s fix.”  President Nixon resigned from office in 1974 to avoid impeachment.

In 1980 Jimmy Carter coped the Saxbe’s fix to appoint then Senator Edmund Muskie as Secretary of State after Cyrus Vance resigned in protest of the failed mission to rescue the American hostages in Iran where eight US servicemen were lost.  Muskie appealed in vain to the UN to save the American hostages and was awarded the Presidential Medal of Freedom by Jimmy Carter just prior to ending his single term most noteworthy for a record misery index on the America people.

In 1993, Senator Lloyd Benson resigned from his office and became Bill Clinton’s Secretary of the Treasury.  An interesting note on this “Saxbe’s fix” is that President George H.W. Bush was somehow convinced to sign the bill as one of his last acts in office—thus sharing partial blame for the Constitutional sin.  Talk about leaving office on a sour note.

Following the 2008 election the “Saxbe’s fix” has become standard procedure to fill Obama’s cabinet:

  1. New York Senator Clinton resigned to become the Secretary of State.
  2. Colorado Senator Salazar resigned to become Secretary of the Interior.
  3. California Representative Solis resigned to become Secretary of Labor.


What would George Washington and William Paterson have said about such activity?

And just how does that oath of office for the President go?  The wording is specified in Article Two, Section One, Clause Eight:

“I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

That should mean exactly what it says, shouldn’t it?

It just makes sense.

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