Saxbe fix

What is the Saxbe Fix?

The Saxbe fix is a mechanism used by presidents to appoint current or former members of the US Congress to civil office positions without violating the Ineligibility Clause of the Constitution. This clause prohibits presidential appointments to civil offices created or augmented during the term of a congressional member’s elected term. A salary rollback, known as the Saxbe fix, reverts emoluments (salary and benefits) to their original level before the member took office, allowing for the appointment.

A Brief History

The Ineligibility Clause has been a thorny issue since at least 1793. President George Washington attempted to appoint William Paterson to the Supreme Court due to a conflict over term lengths, and the issue continued through 1882 when an Attorney General formal opinion concluded that resignation from Congress does not free a member to be appointed to civil office.

The First Saxbe Fix

In 1909, Philander C. Knox’s appointment as Secretary of State was threatened by the Ineligibility Clause due to term length and pay increases. A bill was passed reducing only the Secretary of State’s salary to address the issue. The first formal opinion noted that a ‘Saxbe fix’ can remove disqualification under the Ineligibility Clause, with President Roosevelt signing a bill in 1909 reverting Secretary of State’s salary to $8,000.

Continued Use and Exceptions

The practice has continued through the years, with exceptions and further interpretations. The Senate confirmed all of Taft’s Cabinet appointees on March 5, and Knox took office on March 6. In 1922, Senator William S. Kenyon was allowed to accept an appointment as circuit judge despite the Ineligibility Clause because no disqualifying event had occurred.

Notable Saxbe Fixes

The Clinton administration later reaffirmed this decision when Representative Bill Richardson was nominated as U.N. Ambassador, and the Nixon administration skirted the Ineligibility Clause by naming Donald Rumsfeld as Director of the Office of Economic Opportunity in 1969, even though he was already receiving a salary for an Assistant to the President position at the same rate.

Legal Challenges

The Ineligibility Clause did not prevent Senator Hugo Black from being appointed to the Supreme Court, and the court rejected a challenge to his appointment based on Ineligibility Clause objections. The Nixon administration’s attempt to appoint Senator William Saxbe as Attorney General after Elliot Richardson resigned on October 20, 1973, was successful due to the Saxbe fix.

Jimmy Carter’s Use of the Saxbe Fix

President Jimmy Carter used a Saxbe fix when appointing Edmund Muskie as Secretary of State. Unlike previous fixes, the reduction in Muskie’s salary was temporary. The Nixon administration requested a reduction to pre-1969 levels due to an Ineligibility Clause issue, and the Senate passed S. 2673 by a roll-call vote on December 7.

Recent Developments

President George H.W. Bush signed a Saxbe fix bill on January 19, allowing Senator Lloyd Bentsen to become Treasury Secretary. S.J. RES. 1 (1993) canceled emolument increases for the remainder of Bentsen’s term. University of Minnesota Law School Professor Michael Stokes Paulson rejected the Bentsen fix as unconstitutional in a law review article.

Controversy and Constitutional Questions

In 2008, the term ‘Saxbe fix’ reentered public lexicon with speculation about Senator Hillary Clinton becoming Secretary of State under President Barack Obama. A lawsuit, Rodearmel v. Clinton, was filed on behalf of David Rodearmel, a Foreign Service Officer, claiming Clinton is constitutionally ineligible to serve as Secretary of State due to the Ineligibility Clause.

Conclusion

The Saxbe fix remains a contentious issue in American politics, with scholars and legal experts debating its constitutionality. While it has been used by both Republican and Democratic presidents, the mechanism continues to raise questions about the spirit and intent of the Ineligibility Clause. As we move forward, the debate over this constitutional clause will likely continue, shaping how future administrations navigate appointments.