Appointment of Former or Sitting Members of Congress to Civil Offices Created by Congress at the Time Such Persons Were Congressmen ( 1978 )

December 21, 1978
78-99 MEMORANDUM OPINION FOR THE COUNSEL
TO THE PRESIDENT
Judges— Members of Congress— Constitutional
Restriction on Appointment (Article I, § 6, cl. 2)—
Omnibus Judgeship Bill (28 U.S.C. § 133, as
amended)
This responds to your inquiry concerning any legal restriction against the
appointment of former or sitting Members of Congress to civil offices created
by Congress at the time such persons were Congressmen. Specifically, the
issue concerns the appointment of former members of the 95th Congress to the
new judgeships created by the Omnibus Judgeship Bill; 28 U .S.C . § 133, as
amended by 92 Stat. 1630.
The relevant legal provision is Article 1, § 6, cl. 2, of the Constitution:
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 M ember of
either House during his Continuance in Office.
This provision poses no obstacle with respect to any current member of the
House of Representatives since each m ember’s term will expire, under the
Twentieth Amendment, at noon on January 3, 1979.1 The same cannot be said
for each current Senator. A Senator is, under the Seventeenth Amendment,
elected for a term of 6 years. However, under the Constitution, Article 1, § 3,
cl. 2, the terms of Senators are staggered so that one-third are chosen every
second year. Accordingly, only those whose terms expire at noon on January 3,
1979, will be eligible under Article 1, § 6, cl. 2, for appointment to the subject
'E ven if a m em ber o f the House of Representatives were reelected to a new term in the past
election he would not be disqualified for appointm ent to one o f the judgeships because the judge­
ships were created during the term expiring at noon on January 3. 1979. the term that constitutes
the period of disqualification.
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judgeships at that time. While other Senators will not be eligible in 1979 for
appointment to the judgeships, their disqualification will lapse upon the
expiration o f their elected terms.
Jo h n M . H a r m o n
Assistant Attorney G eneral
Office o f L egal Counsel
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