Talk:Saxbe fix

The Ineligbility clause may not apply to Hilary

The clause specifically says "during the Time for which he was elected" Clearly Hilary is a she, so will there be a need for a Saxbe fix? —Preceding unsigned comment added by 74.13.126.95 (talk) 19:09, 29 November 2008 (UTC)

Yes, you're right, I imagine this point will occupy legal minds for seconds and seconds. 90.241.13.206 (talk) 21:05, 29 November 2008 (UTC)

Snarkyness aside, the Constitution needs no changes, there are no issues. See "he" under "generic". -69.2.21.192 (talk) 21:18, 29 November 2008 (UTC)

saxbe fix does not actually fix the problem

"But many legal scholars believe it does not cure the Constitutional problem, because the language of Article I is so clearly an absolute prohibition: No senator or representative, period.

"The content of the rule here is broader than its purpose,” said Professor Michael Stokes Paulsen, a Constitutional law expert at St. Thomas School of Law in Minneapolis. “And the rule is the rule; the purpose is not the rule.”

"A 'fix' can rescind the salary,” he added, “but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls.”"

Source: http://firstread.msnbc.msn.com/archive/2008/11/25/1688640.aspx —Preceding unsigned comment added by 98.213.141.241 (talk) 22:22, 29 November 2008 (UTC)

Sure it fixes it. Numerous members of Congress have had the fix applied in law and have then served in the Cabinet. A very small minority of people (on the left and right I might add) think it doesn't, but the practical upshot it is that it demonstratively does. Byrd on the left, and the scattering of Right-wing Constitutional 'experts' on the right can claim that it can't actually fix the issue are being willfully myopic on the matter.Lestatdelc (talk) 06:11, 21 December 2008 (UTC)

That the Congress approves it doesn't somehow make it Constitutional. The only problem is that it hasn't been challenged in court yet. It doesn't demonstrably "fix" it as much as act as a workaround that few care about. I think it's very, very dangerous to assert as fact that a "fix" that doesn't address the issue at hand. Ed Wood's Wig (talk) 14:07, 21 December 2008 (UTC)

"Fix" is the term that WP:RS commonly use when referring to this matter, so that's the term we should use too. And in computer engineering, at least, a "workaround" is a kind of fix. The fact that it hasn't been challenged in court, and that the only people considering challenging it are fringe players (e.g. Judicial Watch), indicates that the fix is likely to stick. If it does get challenged and the court says the workaround is invalid, then yes we'll change the name of the article! Wasted Time R (talk) 14:13, 21 December 2008 (UTC)

"Fix" is only the well-known term for it. Even those who demonstrate that the "fix" doesn't actually meet Constitutional muster use the term. I don't want to see the name of the article changed, I have no issue with that. I instead want the article to reflect the fact that the fix doesn't actually meet the Constitutional muster, something we have plenty of reliable sources on to base that on. Ed Wood's Wig (talk) 14:20, 21 December 2008 (UTC)

Sorry but you claiming it doesn't meet Constitutional muster doesn't make it so. If I say the price of a bag of potato chips which now sells today for $3.00 hasn't gone up in price form what it was last month (when it was selling for $3.00) but in the interim there was a price increase of 50 cents three weeks ago, and a 50 cent price cut last week, has the price of the chips gone up or not? When Hillary Clinton takes the office of Secretary of State (assuming she is confirmed) the emoluments of the office will not have been increased from when she was elected to her second term in the Senate to the time she takes office at State. Those on the right and left saying otherwise as simply wrong. Lestatdelc (talk) 14:30, 21 December 2008 (UTC)

No,w e instead have piles of reliable sources that make it so. In your example, the price of chips increased over the last month. Ed Wood's Wig (talk) 14:35, 21 December 2008 (UTC)

No it didn't. There was no net change in the price of chips. You can just as easy argue that the emoluments decreased over the term.Lestatdelc (talk) 00:08, 23 December 2008 (UTC)

The text of the Constitution is "shall have been encreased during such time". "During" clearly does not refer to the net increase.--Michael White^T·C 15:08, 21 December 2008 (UTC)

No, "during" refers to the term of service. Ed Wood's Wig (talk) 17:53, 21 December 2008 (UTC)

The emoluments decreased during such time due to the use of the rollback.Lestatdelc (talk) 00:08, 23 December 2008 (UTC)

We already have a "Legality" section that addresses the fact that some people don't think it meets constitutional muster. Even if the Supreme Court ruled on it, the people in that camp still wouldn't change their mind, and would just say that the SC got it wrong. If the only thing at dispute here is the wording in one caption, surely something can be worked out. Wasted Time R (talk) 14:34, 21 December 2008 (UTC)

So if we have a section that notes that it's not simply established fact that it "fixes" anything, there shouldn't be a problem with noting that it's not a matter of fact. Right? Ed Wood's Wig (talk) 14:35, 21 December 2008 (UTC)

It's a matter of fact that the workaround works, i.e. that it gets sitting members of Congress into the Cabinet. That's what "fix" would mean to most people. Nobody ever agrees on whether X or Y or Z is constitutional. There are people who think that the New Deal was unconstitutional, that the income tax is unconstitutional, that Obama assuming office next month will be unconstitutional, etc. The world moves on. Wasted Time R (talk) 14:50, 21 December 2008 (UTC)

So you're attributing a bunch of arguments made by nutters to the rather clear and souirced assertion that the Saxbe fix doesn't answer the Constitutional questions? Interesting, really. The point is not to debate the fix, in any regard, but to make sure the article accurately reflects the reality sothat people coming here don't read the first graph and think that this is completely uncontroversial or unanimous. Ed Wood's Wig (talk) 17:53, 21 December 2008 (UTC)

My analogies were to exaggerate the point. I'm sure you can find a dozen legitimate constitutional scholars who say the fix is constitutional and another dozen who'll say it isn't. The "Legality" section can be expanded to include a sampling of views in this academic debate from both sides. But the bottom line remains that the fix works in practice, and that's what the article as a whole needs to get across. Wasted Time R (talk) 18:19, 21 December 2008 (UTC)

Then perhaps the article needs to be better worded to get across the idea that it works in practice, but not necessarily in theory. Right now, it just sounds like it's a legitimate, unanimously-accepted fix. Ed Wood's Wig (talk) 20:24, 21 December 2008 (UTC)

There's plenty of indications in the article that opinion isn't unanimous. Witness the votes against fixes in the 1909 and 1973 cases, and Reagan's crew not doing it at all. But go ahead and add more. Wasted Time R (talk) 22:40, 21 December 2008 (UTC)

Well, I kept getting reverted when I even possibly introduced that sort of hedging, but I'll give it a go. Ed Wood's Wig (talk) 01:12, 22 December 2008 (UTC)

Italics

I disagree with using Saxbe fix in italics everywhere in the article. It's not a foreign term, rather it's the subject of the article! Where in WP:ITALICS is this case listed, such that italics usage is appropriate? Wasted Time R (talk) 02:33, 12 December 2008 (UTC)

I was using it as one would a court case name, though this is instead a colloquial name for a legislative move. I an fine with removing the italics if we keep the full term. Lestatdelc (talk) 03:07, 12 December 2008 (UTC)

OK, I've removed them. Wasted Time R (talk) 03:29, 12 December 2008 (UTC)

Salazar - Saxbe

I need some sources for Salazar also needing a Saxbe fix. Can anyone find a reliable source. Also, his article and the transition team article need sources.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 19:56, 17 December 2008 (UTC)

Salazar was a Senator in 2008. Ed Wood's Wig (talk) 01:12, 22 December 2008 (UTC)

GA Review

This review is transcluded from Talk:Saxbe fix/GA1. The edit link for this section can be used to add comments to the review.

• the article suffers a bad form of recentism brooding in excessive detail over the Obama/Clinton case, which should be covered in detail elsewhere (Obama's transition article). Compare with Ineligibility Clause#Political and legal history.
  • I think I have rearranged the article to address this concern.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 21:58, 8 January 2009 (UTC)
    • I still don't see why Obama needs a singleton subsection; either add sections (and expand a little) previous significant uses, or drop the Obama heading. Also, why is the "Other" subsubsection is needed? You could have an intro to the Obama section (whether ts has a heading or not) giving that summary info. Xasodfuih (talk) 22:10, 8 January 2009 (UTC)
      • How is it now split by century?--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 22:24, 8 January 2009 (UTC)
• in this wiki article the legality of Saxbe fix is challenged (on theoretical basis) only in the same source that contests Clinton's appointment, which a fairly POV, especially since no counterbalancing opinion is given in the legality section. I'm sure some scholars did find it legal in nearly 100 years...
  • The fact that people have been able to hold office after executing the fix is clear evidence that it is widely considered legal. The counterveiling thought that it might be illegal seems to be all that is necessary. Why do I need to say some consider it legal, when it has been used effectively after much debate.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 21:46, 8 January 2009 (UTC)
• the wiki article fails to give the arguments for/against the legality of the fix. I checked Ineligibility Clause, and it doesn't do it either.
  • Now that it is rearranged with a legality section is this still an issue?--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 21:58, 8 January 2009 (UTC)
    • Quick note: Repeating "Some legal scholars ..." in the 1st sentence of two adjacent paragraphs is poor style. I'm still reviewing that section's contents. Xasodfuih (talk) 22:13, 8 January 2009 (UTC)
      • I have revised the text to address this and to clarify the interpretation of the secondary source.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 22:45, 8 January 2009 (UTC)
    • Look, if all you're going to do is move paragraphs around, I'll quickfail this GAN. The legality section now discuses the Clinton case, when it should be about the the legality of lack thereof on constitutional grounds. I'm sure you can find someone else to pass it, but it won't be me.
      • Ordinarily, I am much more liberal with my editorial involvment for holds. However, this article has six editors other than myself who have made at least five edits in its brief existence. With the widespread involvement, I am not so quick to make a vast overhaul.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 22:48, 8 January 2009 (UTC)

I'll get to more fine grained aspects if/when the above are addressed. Xasodfuih (talk) 20:54, 8 January 2009 (UTC)

Good idea having a subsection per century! Okay it's getting in shape. Some more nitpicking:

• History section has a poor heading title since Instances are, ahem, history. That paragraph is useful for giving context (although it's a bit repetitive given the lede). I suggest (1) renaming it to Ineligibility Clause, and (2) also move there some stuff from the lede, e.g. the quote, which is bit distracting there (positioned in the lede it might even suggest that the quote is the fix) Xasodfuih (talk) 23:25, 8 January 2009 (UTC)
  • O.K.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 23:42, 8 January 2009 (UTC)
• The first three paragraphs in the Legality section flow, but the last one is too Clinton specific. I suggest integrating it in the 21st Century section where Clinton's appointment is discussed. Xasodfuih (talk) 23:38, 8 January 2009 (UTC)
  • I moved it back up to the Clinton section.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 23:45, 8 January 2009 (UTC)
• You may want to explain for the lay reader what "emoluments" means (a parenthetical note should suffice). The MSNBC article does explain it, so it's not far fetched to assume that some don't know what it means. I think there's a rule for GA to explain jargon, although in this case it's just word that's less common today. Xasodfuih (talk) 23:48, 8 January 2009 (UTC)

Regardless of my last point, I gave it another read after your last set of changes, and I'm passing this GA :-) Xasodfuih (talk) 23:50, 8 January 2009 (UTC)

Salazar, Solis fixes

The article says Salazar got a fix but gives no cite (and misspells Salazar). The article doesn't say anything about Solis, but she must have gotten her fix too, since I think she's up for a full Senate vote today. Wasted Time R (talk) 13:33, 21 January 2009 (UTC)

I see nothing that has passed in the House on THOMAS. Any thoughts? It seems to me that she should be ineligible for emolument increases from Jan 09-Jan 11. However, if she was nominated before the start of the Jan 09 term maybe the interpretation was that she was ineligible for the term from Jan 07-Jan 09. I have not yet seen a Saxbe fix case involving a member of the house. Maybe this is why.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 22:33, 26 January 2009 (UTC)

Solis finally got confirmed today. I still haven't seen anything about a fix being done for her. Whatever the exact reason, it would appear the emoluments clause doesn't affect her nomination. It would be good if we could understand the precise reason why ... Wasted Time R (talk) 22:13, 24 February 2009 (UTC)

How fast does THOMAS get updated?--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 22:54, 24 February 2009 (UTC)

I don't know, but she's been sworn in and is appearing with the Cabinet at the speech tonight, and I still haven't seen anything about a fix having been done. It's better to leave out something that turns out to be true than to include something that isn't, so I've commented out all the mentions of Solis in the article for now. Wasted Time R (talk) 02:31, 25 February 2009 (UTC)

The article should say what we know. I.E., that she has been confirmed and no mention of a fix for the term to which she has been elected ending in January 2011 appears on the public record at THOMAS. This would give the reader all the information that we have without any false information. Rumsfeld seems to be the only rep mentioned in the article. Maybe she is getting a Rumsfeld deal.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 03:11, 25 February 2009 (UTC)

Well, I disagree, but at the very least I think you should take her out of the image row. Saying "There is no record on THOMAS that he has used a Saxbe fix to appoint Hilda Solis (right) as Secretary of Labor." flunks WP:CAPTION big time. It's not succinct and informative, in fact it will bewilder 99.9% of the readers. Wasted Time R (talk) 04:08, 25 February 2009 (UTC)

She is in the image box because her appointment is at issue with respect to the clause. We just need to come to an agreement on what explanation tells the reader the state of our knowledege (or absence thereof) of a fix. She is at issue. We need to tell the reader what has gone on in her case for the reader like everyone else.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 04:16, 25 February 2009 (UTC)

WP:CAPTION says "Along with the title, the lead, and section headings, captions are the most commonly read words in an article, so they should be succinct and informative." This caption says, in effect, that the writers of the article don't know what's going on at the moment. That's not really the message you want to convey! Wasted Time R (talk) 05:13, 25 February 2009 (UTC)

IMO, her image should be in the box. Just tell me what you think an appropriate cation should be.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 06:26, 25 February 2009 (UTC)

Solis does not need a Saxbe fix because the last increase happened before her current term began. If you look closely at the Hillary fix, it only goes back as far as the beginning of her second term, thus the thinking is that only a current term is relevant. Otherwise, Hillary's fix would have gone back to January 3, 2001. -Rrius (talk) 03:57, 5 March 2009 (UTC)

Strict construction or textualism?

The correct usage here should be textualism, not strict constructionism. "Literalism" seems a very POV term, and while O'Connor brands Paulson as one, that seems a thin reed on which to base this article's usage. "Strict construction" is a label rejected by practically anyone who is serious about law, and I have never heard anyone refer to themselves as a "literalist." What basis is there, if any, for preferring "literalism" over "textualism" other than to suggest that those who oppose the purposivist reading are simple-minded, unsophisticated literalists? Simon Dodd (talk) 17:19, 26 January 2009 (UTC)

Just to expand on the above, a few examples. In A Matter of Interpretation, Scalia addressed this point head-on: "the good textualist is not a literalist." In Alden v. Maine, Scalia and Thomas joined an opinion dismissive of "the type of ahistorical literalism we have rejected"; in N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers, they joined an opinion that observed that "an uncritical literalism is no [ ] help" (Thomas endorsed that very line in Egelhoff v. Egelhoff and Cal. Div. of Labor Standards Enforcement v. Dillingham). Rehnquist wrote caustically of the court's literalism in his Nevada v. Hall dissent. Easterbrook has dismissed "empty-headed literalism," see What Does Legislative History Tell Us?, 66 Chi.-Kent. L. Rev. 441, 446 (1991); American Jewish Congress v. Chicago, 827 F.2d 120 (7th Cir. 1987) (Easterbrook, J., dissenting). Who, then, calls themselves a literalist? By contrast, branding observance of the text as literalism is a common rhetorical move by purposivist critics; O'Connor's footnote on page 92 is one example. Marshall, to give another example, wrote that wonderful line in his West Virginia Univ. Hospitals v. Casey dissent: "the Court uses the implements of literalism to wound, rather than to minister to, congressional intent in this case." Terrific prose, but overwrought - of course, the court had done no such thing. To my mind, this is a POV term used exclusively by critics of textualism, and strict construction is not much better either (Scalia, we will recall, has repeatedly said that he isn't one, that no one ought to be, and that it is a "degraded" and "disreput[able]" form of textualism). We should use the correct term: textualism. Simon Dodd (talk) 18:05, 26 January 2009 (UTC)

When you find a source that uses the term in reference to arguments about this clause, it should be included. We should not be doing WP:OR. Our only source for this terminology uses literalism and constructionism.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 22:07, 26 January 2009 (UTC)

That doesn't suffice. These are POV terms being used to describe positions taken by people who are misdescribed to the extent they are described at all by the labels you're choosing. There is nothing in the article that supports this position you're taking - just an offhand derogatory reference to one article in opposition to the saxbe fix. Simon Dodd (talk) 22:42, 26 January 2009 (UTC)

I dislike this kind of labelling in general, but the best approach here might be to label each legal commenter by how they self-identify, not by how others (or we) identify them. Wasted Time R (talk) 22:49, 26 January 2009 (UTC)

Generally, I agree - but I think it's fair to say that with few exceptions, opinion on the saxbe fix breaks fairly cleanly between those who emphasize the text and those who think the text doesn't matter to the extent it's inconsistent with the purpose behind the text. (I realize that in the wacky world of Wikipedia, we are - to my immense frustration, to tell the truth - to evaluate rules in the latter sense, see [1]; Wikipedia:What "Ignore all rules" means, but we're talking about law here, not wikipedia policy.) What isn't true is that one of those camps can be labeled "literalists" ("intentionalists" and "purposivists" is fine for the side that prefers the saxbe fix, because they aren't POV labels) without instantly writing POV into the article, or that one camp is populated by conservatives and the other by liberals. It makes no sense whatsoever to suggest that this is a liberal/conservative issue when every Senate Republican tacitly bought into the fix by confirming Salazar and Clinton. It makes no sense whatsoever to suggest this is a liberal/conservative issue when the Clinton and Bush OLCs agreed on it while the Nixon and Reagan OLCs disagreed on it. Simon Dodd (talk) 23:57, 26 January 2009 (UTC)

Yes, for sure, "liberal"/"conservative" should be avoided. Wasted Time R (talk) 01:31, 27 January 2009 (UTC)

[undent] Discussion here seems to have petered out, so I have boldly made some changes along the lines mentioned above. - Simon Dodd { U·T·C·WP:LAW } 23:34, 29 January 2009 (UTC)

I've objected to some of your wording and changed it. In particular, you can't say "Most people say X" and then give a footnote that says "E.g. <one cite>". You've got to enough cites to support the 'most' contention, or better, cite a review or survey or something that itself makes the 'most' claim. Wasted Time R (talk) 02:23, 30 January 2009 (UTC)

"Examples" section title

This section title is troubling; it suggests that these are just a few of the Saxbe fix instances, and there are a bunch of others out there that the article doesn't discuss. Is that really the case? If these are all of the instances, then the title should be changed to "History" or something like that. If these are almost all of the instances, then I'd still change the title, and indicate somehow in the text that there might be other instances out there. Wasted Time R (talk) 22:15, 26 January 2009 (UTC)

AFAIK, this is an exhaustive list of fixes. I do not know how many times the clause has been relevant.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 22:25, 26 January 2009 (UTC)

Then I say be bold and call it "History" ... which I see you have done. Wasted Time R (talk) 22:35, 26 January 2009 (UTC)

WTF?!

Tony, what are you talking about in your edit summary - "Liberal in this case is constitutional and Conservative is unconstitutional"? What on Earth is the basis for that statement when liberals and conservatives are now and historically have been on both sides of the issue (the titular Saxbe, after all, was a Republican!). Simon Dodd (talk) 22:47, 26 January 2009 (UTC)

Liberals and conservatives take both sides of many arguments, but "Liberal in this case is constitutional and Conservative is unconstitutional" is to my understanding a truthful statement.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 16:02, 4 February 2009 (UTC)

I really disagree with this approach. Trying to fit everything into a "liberal vs. conservative" box is lowest-common-denominator Hannity & Colmes territory. We can do better than that; just describe the arguments on the Saxbe fix, without trying to put L and C labels on them. Wasted Time R (talk) 00:57, 5 February 2009 (UTC)

Agreed. I think it's all stemming from a view that Reagan was the only one to actually enforce the clause, because he knocked Hatch out, which is what the article implies, but the sources we have don't say that. I'm a bit uncomfortable with that.--Wehwalt (talk) 01:01, 5 February 2009 (UTC)

Gregg fix

If Judd Gregg gets announced for Commerce Secretary today as this CBS story says will happen, we'll need to add something about his fix. Also the Hilda Solis confirmation may resume moving forward this week, in which case we need to pin down whether she ever received a fix or not. Wasted Time R (talk) 14:46, 3 February 2009 (UTC)

• That appointment is an outrage on every level. I'm still fuming about it.- Simon Dodd { U·T·C·WP:LAW } 15:06, 3 February 2009 (UTC)
  • I searched THOMAS for a Solis fix last week. Yes we will have to add Gregg.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 15:29, 3 February 2009 (UTC)

The article currently says "Fixes have not yet been approved for Solis and Gregg who have not been endorsed by their vetting subcommittees." Do you have a cite for this, or is this some kind of guess? Because this implies some kind of ordering in the process, but Clinton got her fix on December 10/19, a full month before her committee confirmation hearings of January 13/15. So this explanation doesn't seem to hold water. Wasted Time R (talk) 14:05, 4 February 2009 (UTC)

I have searched THOMAS and see no fix yet. It appears to me that no fix is a statement of fact. I think the prevailing belief all along was that Hillary would be approved. Her candidacy was never in doubt. Solis' is and no fix has been legislated for her. With these facts you are free to alter the text as you see fit.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 16:00, 4 February 2009 (UTC)

Lead mention of 'no fix for Supreme Court appointments'

This sentence has re-appeared in the lead: "However, it has not been used successfully to appoint sitting members of Congress to the United States Supreme Court." I removed this a month ago (see this edit), because the wording suggests that the fix can't be used for Supreme Court nominations, which we should not conclude based on one particular administration choosing not to try it in one particular case. Moreover, the Reagan administration analysis does not seem to have been position-specific; they would have come to the same conclusion for a cabinet nomination too, no? Have there been any other possible Supreme Court appointments that were affected by the existence of the emoluments clause? If so, the body of the article should state them. If not, then putting this sentence in the lead just seems totally misguided to me.

On a somewhat related matter, the Reagan/Hatch/no-Saxbe-fix paragraph is buried in middle of the "Temporary Saxbe fixes" subsection, when it was neither temporary nor a fix. If we want to keep to the chronological approach, I suggest eliminating the "Saxbe fixes" and "Temporary Saxbe fixes" header. Alternatively, we can move the whole paragraph out of there and into the "Unconstitutional" section later on. But where it is now, doesn't seem to be right to me. Wasted Time R (talk) 12:46, 4 February 2009 (UTC)

I think the temporary differentiation is important. The early fixes said we are undoing the salary increase with no set expiration of the lowering of the salary. Eventually, they clarified that the salary only needed to be reduced until the end of the specific elected term. We need to make this clear to the reader.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 01:21, 5 February 2009 (UTC)

In general, the lead doesn't really do a good job of summarizing the whole article at this point. In particular, the constitutionality debate is not clearly addressed in the lead, nor does the lead give a rough figure for how many times the fix has been applied. Wasted Time R (talk) 14:01, 4 February 2009 (UTC)

• The trouble with the Reagan DOJ memo about appointing Hatch to the Supreme Court is that so far as I know, it still isn't available, so we're left with relatively unspecific reports about what it says. As to other Supreme Court appointments, Hugo Black's was famously challenged (that's the Levitt case), but I'm not aware that Congress used the knox-saxbe workaround. Lastly, I'm open to moving some of the material around so that there's a historical backdrop in chronological order. - Simon Dodd { U·T·C·WP:LAW } 14:09, 4 February 2009 (UTC)

• Hmm. I'd really like to understand what went on in the Reagan/Hatch case better. Is this really the reason that Hatch dropped off a short list of two? Wasted Time R (talk) 14:14, 4 February 2009 (UTC)

• I'll do a little research in the NYTimes archives and see if I can find anything. Also, I've been meaning to add to the article a contemporaneous comment from 1909 about the Knox fix from Franklin Knight Lane, who was then an ICC commissioner and later Secretary of the Interior under Wilson.--Wehwalt (talk) 14:53, 4 February 2009 (UTC)

• I am glad to see that everyone who was previously involved has jumped back in here. I am a generalist researcher who has only taken one law course in my entire life (Business law, which is essentially contracts) because I am a finance guy. I think the sentence in the WP:LEAD makes a point that is a statement of fact, but if all of you legal minds feel it is best removed, then by all means please do so. Please feel free to jump in and edit the article. We only have a short time to attempt to get this on the main page and I feel doing so is within reach.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 15:56, 4 February 2009 (UTC)

• P.S. We should possibly consider keeping it in the lead because there is a possibility that because appointing a sitting senator as a Supreme could give grounds to challenge the Emoluments Clause.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 21:17, 4 February 2009 (UTC)

• Tony, Challenges to a sitting Senator's appointment to the Supreme Court (and presumably to any other federal court) seemingly bit the dust in Ex Parte Levitt and another case, whose caption escapes me, involving Abner Mikva's appointment. Finding someone who has standing is next to impossible. Wasted Time, I don't know what Hatch's motivations were; I'll try to find some more detail on the memo, maybe it's been released by now.- Simon Dodd { U·T·C·WP:LAW } 21:24, 4 February 2009 (UTC)

Tony's right, it is factual in that no fix has been done. But I don't think it tells the whole story. Since Simon mentions Leavitt, in the Hugo Black confirmation (which should probably be mentioned in the 20th century chronology though it is briefly alluded to later in the article), the Senate basically rolled right over objections from a senator that Black's SC appointment violated the Clause. Go read the Hugo Black article, or at least the section about his appointment. I would certainly change the phrasing to something like "Congress has never enacted a rollback for a Supreme Court nominee."--Wehwalt (talk) 22:02, 4 February 2009 (UTC)

That's pretty much what the Senate usually did with FDR. ;) At any rate, I've includd Hugo's nomination in the main text, and - since the opinion's not readily available for those who don't have lexis or WL - created an article for Levitt quoting the entire opinion in its single-paragraph glory. - Simon Dodd { U·T·C·WP:LAW } 03:07, 5 February 2009 (UTC)

(outdent)I looked at the NY Times archives. Articles before the Bork appointment mention the ineligibility clause concern. But after Bork was appointed, the Times says: "The Justice Department and White House officials had considered at least two Senators, Orrin G. Hatch, Utah Republican, and Howell Heflin, an Alabama Democrat, reasoning that they might be more easily confirmed by their colleagues than a sitting judge.

But ultimately, they decided that Mr. Bork could be confirmed and that the strategy of nominating a Senator would make more sense in 1988 if Mr. Reagan had an opportunity to name another justice. In 1988, one official said, election-year politics would pose larger threats to confirmation." I haven't checked before Ginsberg or Kennedy were nominated.--Wehwalt (talk) 01:08, 5 February 2009 (UTC)

I should also note that if the Cooper opinion was issued in August, it wasn't a factor in the rejection of Hatch. Bork was nominated in late June.--Wehwalt (talk) 02:09, 5 February 2009 (UTC)

It'd be terrific if it's now been declassified or forms part of the reagan library collection. That would confirm the date, although even if it post-dates the Bork nomination, one can imagine it being the case that DoJ informally prevailed on the President for its issential points and later formalized it in an official opinion.- Simon Dodd { U·T·C·WP:LAW } 03:12, 5 February 2009 (UTC)

Yeah, but until we find it, we're committing WP:SYNTH violations and misleading the reader.--Wehwalt (talk) 03:18, 5 February 2009 (UTC)

I don't see the syn violation so long as the contents of the memo are described by reliable sources. For example, the Heritage Society gas a book edited by Ed Meese - who would certainly know - describing the memo in enough detail for present purposes. See David Forte, The Sinecure Clause in The Heritage Guide to the Constitution 84 (Meese et al, eds. 2005). SYN - not to mention WP:BALLS would come into play if my speculation above were included in the article.

Re your edit summary on standing (you either got it or you don't, in the vernacular), I agree in general with that - and for purposes of the article as it stands at the moment - but as lawsuits against Clinton, Salazar, and Gregg begin to emerge, the qualification to that point may loom large. Standing is not dispensed in gross; a plaintiff may have standing for one form of relief and not for others. See FOE v. Laidlaw, 528 U.S. 167, 185 (2000). Levitt and McClure illustrate the difficulties in finding a plaintiff with standing, period; on top of that, one can conceive of a plaintiff who wants to sue Clinton or one of the others who has standing to seek damages but who does not have standing to seek what's really needed (i.e. an injunction ejecting them from office). This high bar is appropriate in my view - the liberal view of standing treats public law litigation as a kind of qui tam action where the relator represents the entire nation, and conservatives shouldn't be seduced into following suit - but it does make for an interesting qualification that may yet become relevant to this article. - Simon Dodd { U·T·C·WP:LAW } 03:57, 5 February 2009 (UTC)

The synth violation is implying a relationship between the report (two months after the Bork nomination) and Hatch not being appointed, when we don't know that and the NYTimes said that White House sources said that Reagan was keeping back the idea of a senator appointment for a final year, easy to get through appointment. The thing is, the current discussion on standing re Hillary, the denied a passport example, is more or less unsourced and I think the person would lack standing to sue unless Hillary personally denied the passport on discretionary grounds (and probably not even then). A denial at some lower level, or Hillary denying the passport by applying a mandatory Congressional policy would not give the person standing. As for Judicial Watch, we should be careful not to give them much weight under WP:UNDUE. Their lawsuits are so notorious for getting dismissed for lack of standing that their attorneys are allowed to sit down while addressing the judges!--Wehwalt (talk) 10:40, 5 February 2009 (UTC)

Last night Newyorkbrad made this edit with the comment "negate implication that Ineligibility Clause issue led to nomination of Bork instead of Hatch", which added the text "although the Ineligibility Clause issue played at most a small role in the selection." Unfortunately no cite was added to support this. For now I've added this NYT story that was mentioned above as a cite, because it doesn't mention the clause as a reason for not picking Hatch and says that Reagan might turn to a senator the next time around. However, I'd still like to see stronger sourcing on this point. I'll ping Newyorkbrad to see if he has any. Wasted Time R (talk) 14:22, 6 March 2009 (UTC)

With all respect to Newyorkbrad, I do not believe his edit was justified. We simply do not know why Bork was picked rather than Hatch, ditto D. Ginsberg and Kennedy, other than the statement that Reagan felt it was too early to use a safe Senator pick. The Saxbe fix issue has not led to major opposition for the confirmation of an appointee, ever.--Wehwalt (talk) 14:33, 6 March 2009 (UTC)

Newyorkbrad said on his talk page in response to my query: "I don't have my books on this in front of me, and my edit was based in part on my recollection of what was reported at the time (I was just started in law practice and was following the appointment very closely). As far as I know, Bork was pretty much the front-runner for this appointment from the time Justice Powell's retirement was announced. However, feel free to delete the claim for now until I have an opportunity to return to this issue. Regards, Newyorkbrad (talk) 15:03, 6 March 2009 (UTC)"

Newyorkbrad solicited readers' knowledge on the Hatch/Bork/Ineligibility matter in this Volokh Conspiracy blog entry last week. But the only reader comment that I could see (wading past all the WP bias ranting) was to this Volokh Conspiracy entry that the article is already using as a cite for other matters. And we've already moved away from that entry's conclusion re Hatch/Bork. Wasted Time R (talk) 13:26, 21 May 2009 (UTC)

Couple of things

Surely we can find a better source than a blog for the pay increase COLA adjustments, which were put in in the early 90s both to evade the 27th Amendment and so Congress would not have the embarrassment of voting on its own pay raises. Also, the article says that "Clinton received approval" to appoint Mitchell to the SC. Did Congress approve a fix in anticipation of a Mitchell appointment? Seems kinda odd. If that's the language in the source, OK, but it is very troublesome. Tony, you have access to O'Connor, what is said?--Wehwalt (talk) 11:14, 5 February 2009 (UTC)

Knox fix importance

I'm still trying to catch up on the hundred or more edits and reorg from last night, but I strongly disagree with the "Cliffnotes" edit that reduced the coverage of the Knox fix, and I've restored a good deal of it. The Knox is the initial precedent for everything that followed, and it's important to discuss the alternatives Congress considered, and the amount of opposition the fix got in the House — the largest amount of political opposition it would ever get, it seems. The money amounts are also relevant, since they are included in later fix episodes and give the reader a sense for what was involved. The surprise of discovering the constitutional complication is important to include (and unnecessary to in-text attribute to the NYT, unless someone has evidence their account was wrong) because it vividly reinforces the obscurity of the clause. I've also restored the March 4, 1909 date of the fix, which was removed (!) despite the fact that its upcoming centenary is the only reason we're going through this FAC fire drill in the first place.

Finally, I disagree with the notion that this should be a "Cliffnotes" article. With enough time, research, and effort, this article can be the best and most thorough and comprehensive treatment of this issue around. Why settle for Cliffnotes instead? Wasted Time R (talk) 13:30, 5 February 2009 (UTC)

I say it's irrelevant, and it wastes the reader's time. It is absolutely immaterial how much was involved - if the salary was raised by one dollar, that would be enough. The additional detail, I agree, is interesting - but it detracts from the article. We should split it into a sub-article. - Simon Dodd { U·T·C·WP:LAW } 14:09, 5 February 2009 (UTC)

• I've boldly done just this. I copied the section at issue as it existed before my edits last night into a new section in Knox's article (although it could just as well be an article of its own), pared down the text in this article, and added an inline "more info" link to the full text in the Knox article. This way, the reader gets the best of both worlds - they get a concise summary of the important points of the nomination controversy, and they can easily - but need not - get the more detailed version by following the link.- Simon Dodd { U·T·C·WP:LAW } 14:27, 5 February 2009 (UTC)

I strongly object to this again. What you are doing is WP:Recentism at its worst: reducing the treatment of arguably the most important of all the fix cases (because it was first, set a precedent, and was strongly debated politically, not just legally, at the time), while the article contains reams of detail about many of the later cases. Money amounts are given in the Saxbe case and in great detail in the Clinton case; vote numbers are given in Saxbe case, and so on. What makes the 10 Senate votes against Saxbe's fix more significant than the 115 House votes against Knox's fix? And there is absolutely no need for this article to spill into subarticles, or into new sections of BLP articles. This is a short-to-medium length article [19 kB (3187 words) "readable prose size"] that's in no danger of getting too long, and this is where all the description of the ineligibility/emoluments clause dealings should be. And why are you so intent on wiping out the March 4, 1909 date?

This article isn't about Philander Knox. Nor is it about the Taft administration, historic salaries of executive branch officials, or notable events of the year 1909. It's about the device now known as the Saxbe fix. While it matters a great deal to situate the Knox incident in the timeline, the year is all that is required to do so; the reader need not be burdened with matters that are absolutely irrelevant to the saxbe fix, such as the precise day (the year suffices for the just-mentioned purpose), the vote count in Congress (that it passed is all that is relevant), the salary (even if the increase was but the price of admission to the New York Subway, it would still be an increase, and that's all that is relevant), and so on. And let me be clear: I don't just say this about Knox. If those details are given elsewhere for other nominations (I hadn't noticed), they're next on the chopping block. Larding the article with a lot of truthful, verifiable, yet trivial detail distends and detracts from the article, and wastes the reader's time. As someone who spends most of his day reading, nothing infuriates me more than writers who waste. my. time. Simply saying that the article has yet to transgress the word count is irrelevant; people come to Wikipedia to quickly understand a subject that they do not know; if some of them become fascinated by Phillander Knox's story (or that of any other player in this drama), it suffices to direct them to his article, but it does no favors to other readers to include a bunch of irrelevant detail. I imagine that if I write WP:TURGID, that will be a redlink, but it may hopefully drive the point home: not everything is relevant. - Simon Dodd { U·T·C·WP:LAW } 01:15, 6 February 2009 (UTC)

The material in question is not about Knox himself, the Taft administration, the merits of his nomination in regards to other issues, or about anything else that happened in 1909. It is about the problem that the emoluments/ineligibility clause presented to his nomination, and what options were looked at, and the debate that was held about it, and what finally happened. It is about the very subject of this article! This article has two purposes: to explore the history of appointments that hit this issue and fixes done or not done, and to discuss the questions about its constitutionality and appropriateness. The material in question is directly relevant to both of these purposes. Wasted Time R (talk) 01:24, 6 February 2009 (UTC)

I want to see a consensus for these Knox changes from the other editors active here, rather than you just taking unilateral actions. Wasted Time R (talk) 00:38, 6 February 2009 (UTC)

I favor a long discourse on the Knox situation. That is when this really came to modern light. I'm planning (holding off for now) quoting ICC commissioner (later Secretary of the Interior) Franklin Knight Lane who wrote in February 1909:

Have you noticed that nice point of constitutional law, dug up by a newspaper reporter, which renders Knox ineligible as Secretary of State? He voted for an increase in the salary of the Secretary of State three years ago. They will try to avoid the effect of the constitutional inhibition by repealing the act increasing the salary. Technically this won't do Knox any good, altho' it will probably be upheld by the Courts, if the matter is ever taken into the Courts.

--Wehwalt (talk) 00:55, 6 February 2009 (UTC)

Wehwalt and Wasted Time - just to be clear, I have no objection to giving appropriate and full coverage to the Knox nomination. As I've said above, what I object to is providing a welter of excessively specific and irrelevant detail. That the fix originated with the Senate judiciary committee, for example, is relevant; that it faced opposition in the House is probably relevant; but to specify the vote count (or the date on which the vote took place) is wasting the reader's time and burdening the article with matters that simply don't matter. An encyclopædia is not a treatise, ergo Wikipedia is not a treatise. It is an encyclopædia.- Simon Dodd { U·T·C·WP:LAW } 01:21, 6 February 2009 (UTC)

Yes, the votes matter. A 173-115 vote is inherently different from a 90-10 vote is inherently different from a 99-1 vote. And when discussing how Congress works, where legislation originates from is indeed relevant. Knox was a sitting senator and so the Senate was kindly disposed towards his getting the Sec State position; the House had much less of that disposition. By not giving a reasonably thorough treatment of the Knox fix, we are depriving our readers of useful and historically valuable information context, not helping them. Wasted Time R (talk) 01:32, 6 February 2009 (UTC)

When was the Knox fix enacted?

The article has said March 4, but is using a February 12 or February 16 NYT story as a cite, obviously not right. This book source says it was an act of February 17. As Wehwalt pointed out in an FAC comment, we should also try to find out when Roosevelt signed the act, as that's when the law went into force. Wasted Time R (talk) 02:50, 6 February 2009 (UTC)

I am not sure I understand the term enacted. It became effective on March 4. I do not know when it was passed into law.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 02:59, 6 February 2009 (UTC)

I am not sure which of the dates is important. I don't know that that the date laws are passed is celebrated. For example, people celebrate Juneteenth and not the date the Emancipation Proclamation was signed. I don't know what date a MLK Day resolution was signed or enacted, but became effective on prescribed dates in January that are celebrated.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 03:09, 6 February 2009 (UTC)

First, mea culpa for not re-reading the Feb 12 story to understand what you were using it for in terms of the March 4 date; I shouldn't have reverted you. As for the underlying question of what the most significant date is in the Knox episode, that's a bit harder. It's not a holiday or something people celebrate, so your analogies aren't quite on target. The significance of the fix is that it's something that Congress does to work around the constitution, so I would argue the date Congress passed it is the most significant, followed by the date the President signed it, followed by the date it became effective. But these are small differences in significance, at least as I see it, so I guess any of them will work from a TFA perspective. Wasted Time R (talk) 04:33, 6 February 2009 (UTC)

This says when Roosevelt signed the bill. But I'd still like to see a Public Law citation. Technically, the Knox fix went to effect on March 6 for Knox, the date he qualified by taking the oath. I suggest mentioning the date Roosevelt signed the law. If you go some other route, like March 4 or 6, the issue could be complicated by issues such as whether Knox's predecessor stayed in office until March 6 and drew salary at the reduced rate, which misses the point of the article.--Wehwalt (talk) 10:06, 6 February 2009 (UTC)

[This http://query.nytimes.com/mem/archive-free/pdf?_r=1&res=9A04E1DC1539E733A25755C0A9659C946897D6CF] says Knox was confirmed by the Senate on March 5. Really, the March 4 date only has significance in that it is the date that the salary of Secretary of State was lowered. Either the date of enactment or the date Knox took the oath seem more significant dates than March 4.--Wehwalt (talk) 11:54, 6 February 2009 (UTC)

Disqualifying event

Should we explicitly define the term. Maybe the following is a good start: a disqualifying event for a potential nominee to a civil office is an increase in pay of that civil office during a term in Congress for which one has been elected for those whose terms have not yet reached their conclusion.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 08:01, 10 February 2009 (UTC)

Cost of Living

Does anyone know what law caused Cabinet Salaries to be indexed by a cost of living adjustment.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 08:37, 10 February 2009 (UTC)

It was the Ethics Reform Act of 1989. Full info here--Wehwalt (talk) 12:52, 10 February 2009 (UTC)

Is this going to be interpretted and added to the article. I could wade through it, but at least four legal minds are interested in the article, so one of you should probably do it.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 17:20, 16 February 2009 (UTC)

Lede

I still feel that the lede is problematic. The biggest stumbling block is that it assumes the answer, being phrased in a way that implies that the saxbe fix does fix the constitutional problem, rather than being a device that is designed to attempt to evade the restrictions. This ought to be changed, but since I invested a few hours in boldness that were wiped out in a single revert before, I thought it better to raise the issue here first.- Simon Dodd { U·T·C·WP:LAW } 14:10, 16 February 2009 (UTC)

See the #saxbe fix does not actually fix the problem discussion above. Regardless of whether one thinks the fix is constitutional, it does work in practice. Saxbe fixes are passed for nominees, and the nominees end up in the cabinet. Opposition to the Saxbe fix has in recent years been limited to academic legal debate. So that's what the lede needs to convey. If Judicial Watch wins their lawsuit and Hillary is forced to step down from Sec State, then yes, we will definitely need to rewrite the lede. Wasted Time R (talk) 14:33, 16 February 2009 (UTC)

By that standard, completely ignoring the problem "does work in practice," insofar as it is done and is hard to challenge, but no one would suggest that this does in fact meet the Constitutional requirement. The lede should be clear that this is an attempt to evade the restriction, not the exploitation of an actual loophole. - Simon Dodd { U·T·C·WP:LAW } 15:00, 16 February 2009 (UTC)

• I'm fine with Wehwalt's current revision.- Simon Dodd { U·T·C·WP:LAW } 15:01, 16 February 2009 (UTC)

• I changed the 'attempts' to 'seeks' in the lead. The former seemed a bit skewed towards the view that this is all unconstitutional. Wasted Time R (talk) 16:34, 16 February 2009 (UTC)

Saxbe case

I'm not 100 percent clear on the events that led to the increase in salary that would have rendered Sen. Saxbe ineligible. What I'm guessing at is that there was some act, passed either in 1968 or 1969 (that should be specified) which said there would be a salary increase unless one or both houses of Congress objected (the legislative veto later ruled unconstitutional in the Chandra case). That needs to be cleared up a bit by you, Tony, since you have the sources.--Wehwalt (talk) 14:53, 16 February 2009 (UTC)

I have added all that I know about the fix from the sources that I found in the Library. I don't know when the original bill was passed and don't know about a legislative veto. I may be able to check at another library on Wednesday, but I don't really know what to look for.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 17:12, 16 February 2009 (UTC)

It would be good background info, but if you can't find it, you can't find it. The thing to do, is to find out the section of the United States Code that sets the salary of Cabinet officers, then you can go look at the hard copy in the bound volumes in the library, and after the text of the section is set forth, there should be a list of laws which amended that section, which can also be checked out. If you go again to the law library, you might want to have a word with one of the law librarians, if you haven't already done so, who can give you some pointers.--Wehwalt (talk) 17:27, 16 February 2009 (UTC)

I am going to a different Law Library on Wed. I will be going to the one at the Daley Center downtown. I don't think it will affect your instructions, but I am just letting you know.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 17:39, 16 February 2009 (UTC)

Blog sources

One of the biggest weaknesses of this article relative to FAC continues to be its reliance on blog sources. The worst of these is the first: Much of the article's discussion of the origins of the ineligibility/emoluments clause is sourced to one "Adam B" writing for DailyKos. A guy without a last name posting on one of the world's most non-objective political web sites? Surely in the reams of literature written about the Constitutional Convention, there's a more scholarly source that can be used than Adam B. Wasted Time R (talk) 04:25, 17 February 2009 (UTC)

I am doing my best to find stuff related to the topic. I could use some help.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 04:45, 17 February 2009 (UTC)

You're certainly right about not many books mentioning it. I went to my county headquarters library last night, went through two shelves of books about the Constitution, the origins of it, the Constitutional Convention, etc., and nary a one had any index entries for the ineligibility clause or the emoluments clause. Wasted Time R (talk) 13:34, 18 February 2009 (UTC)

The second-worst-looking one of these was "^ a b McGough, Michael (2008-11-24). "Unconstitutional Hillary?" (Blog). Opinion L.A.. Los Angeles Times. http://opinion.latimes.com/opinionla/2008/11/you-can-debate.html. Retrieved on 2008-11-25.", which was an opinion writer's blog rather than a reporter's blog. I've gotten rid of it, by using two existing sources elsewhere in the article that said the same thing. Wasted Time R (talk) 12:54, 17 February 2009 (UTC)

I've removed the blog half of this cite: "# ^ OLC memo of July 26, 1996, re Nomination of Sitting Member of Congress to be Ambassador to Vietnam (internal quotation marks omitted); Dodd, Simon (2008-11-24). "Clinton's eligibility, III" (Blog)." since it wasn't needed to support the text. (I then improved the formatting of the first half of the cite, to match the other OLC memo cite in that sentence.) Wasted Time R (talk) 14:05, 17 February 2009 (UTC)

I've gotten rid of this blog source: "^ a b Patashnik, Josh (2008-11-24). "Hillary Clinton's Emoluments Problem" (Blog). The Plank. The New Republic. http://blogs.tnr.com/tnr/blogs/the_plank/archive/2008/11/24/hillary-clinton-s-emoluments-problem.aspx. Retrieved on 2008-11-25." by replacing it with two other existing sources. Wasted Time R (talk) 05:05, 19 February 2009 (UTC)

Adam B is now gone. I have added a bunch of stuff and welcome editing. Feel free to remove unnecessary details. This will be up at FAC within 48 hours so please take one more run through.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 22:03, 19 February 2009 (UTC)

Good work; the article's gone from 7 down to 3 blog sources now. Wasted Time R (talk) 23:26, 19 February 2009 (UTC)

United States v. SCRAP - low water mark vs.high mark

In the article you say: The Supreme Court has become less solicitous of standing since retreating from the low water mark of United States v. SCRAP. However, in the article, United States v. SCRAP, it says: The standing decision has retained its place as the high mark in the Court’s standing jurisprudence. —Mattisse (Talk) 17:57, 21 February 2009 (UTC)

I reworded this to "... the most expansive level of ..." to avoid any low/high confusion. Wasted Time R (talk) 18:07, 21 February 2009 (UTC)

Question

How was the Saxbe fix used on Senator Lloyd Bentsen, as he was elected to the Senate in 1970, so he must have passed on salary increases during that time? Or is there a time limit involved that I overlooked? —Mattisse (Talk) 21:19, 21 February 2009 (UTC)

The way the Clause is interpretted his elected term, which was from 1/3/89-1/3/95 is what is relevant. Only his fourth term and not all terms were relevant.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 21:44, 21 February 2009 (UTC)

Oh, OK. Very interesting. Then I can see why it might be controversial, as that is probably not what the framers of the Constitution had in mind. —Mattisse (Talk) 22:13, 21 February 2009 (UTC)

OK. Well, other sources say it is politically controversial. But since you say it is not, I have lost interest in the article. —Mattisse (Talk) 04:06, 22 February 2009 (UTC)

It's not politically controversial in the larger sense. The recent votes on the fix for Clinton and others have all been unanimous and uncontroversial. Have you ever seen this issue debated on CNN or Fox News or anyplace like that? Have you seen any criticism of Congress passing the fix? No. Do Rush or Hannity harp on this? No. Is it a Republican vs Democrat issue? No. The constitutionality is contested among some interested legal thinkers, and by fringe groups like Judicial Watch, but in the mainstream body politic, the Saxbe fix is not controversial. That's what the source said and that's what the article is saying. Wasted Time R (talk) 04:27, 22 February 2009 (UTC)

I've changed the sentence in question to read "Over time the Saxbe fix has become politically uncontroversial, ..." to indicate that it once was. There was a lot of political opposition to the Knox fix, a little to the Saxbe fix, and none thereafter. Note that the Reagan/Hatch episode was not political opposition, but rather legal opposition within the Reagan administration; if they had nominated Hatch, there's no evidence that any senators would have objected to him on emoluments clause grounds. Wasted Time R (talk) 05:14, 22 February 2009 (UTC)

Democratic opposition to Saxbe

What is the source for "Ten Democratic senators cited constitutional concerns in opposing this move."? I know that Byrd did, but do we really know that about the others? Saxbe's autobiography says that Sam Erwin's stated opposition was based on the constitutional objection, but really he was getting back for Saxbe having criticized Erwin's running of the Senate Watergate hearings earlier that year. And if all ten really were against Saxbe on constitutional grounds, then we have a nice historical irony, because per this NYT rollcall, one of them was Ed Muskie, who of course would be the next Saxbe fix recipient six years later. Wasted Time R (talk) 17:11, 22 February 2009 (UTC)

The cite was this WaPo post, already used in the article elsewhere. I attached it to this, and then added the Muskie irony later on. Better still would be a Congressional Record cite or something like that, that directly gives Muskie's reasons for opposing Saxbe. Wasted Time R (talk) 18:01, 22 February 2009 (UTC)

Solis Fix

There are lots of quick hands that keep trying to erase Solis from the article. It is very possible that she will hold the job for four year since that is how long Obama has been elected for. The Ineligibility clause makes her ineligible for all emoluments increases during her elected term from noon January 3, 2009 to noon January 3, 2011. There are two cost of living adjustments during this time. Either she must surrender the 2009 and 2010 increases or the 2010 and 2011 increases if she is to serve four years. It is likely that it is the 2010 and 2011 increases if nothing is on the record yet. I believe it is still considered a fix to surrender all emolument increases during her elected term. I see nothing on the record on the matter yet. Please help me keep her from being excised from the article.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 04:48, 5 March 2009 (UTC)

Re-read the ineligibility clause. It says. "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." The operative portion refers to the appointment, not the acceptance of a pay increase. Thus, if there were ever going to be a problem for Solis, the magic moment was when she took the oath of office as Secretary of Labor. Her appointment cannot suddenly become unconstitutional at some point after she was appointed. It is true that the Saxbe fixes for Clinton and Salazar have future effect, but that says nothing about Solis. To suggest that Solis will or should have a Saxbe fix is OR. It needs to be verified based on a reliable source. -Rrius (talk) 05:00, 5 March 2009 (UTC)

If I am understanding you correctly, she could vote for a pay raise and take the office before it becomes effective without constitutional bar.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 05:04, 5 March 2009 (UTC)

Perhaps, but that has not been alleged here. The point is that the Constitution prohibits appointment under certain circumstances; it does not discuss COLAs or increases proposed before the appointment and taking effect after. It would be OR (and the result of faulty logic) to suggest what you think the article should say: that Solis requires a Saxbe fix. -Rrius (talk) 05:09, 5 March 2009 (UTC)

(ec)I agree with Rrius that once she's in, she's in. But I'm still not clear on how she got in. From our article, there was a scheduled cabinet pay raise from $191,300 to $196,700 in January 2009. This was in Solis' current term, following her 2008 reelection and early January swearing in, and before her February 24 resignation. So how does this not apply to her? Is it that the legislation to effect this pay raise was done before 2009, and thus was in a prior term? That doesn't seem to be how the clause reads. Wasted Time R (talk) 05:10, 5 March 2009 (UTC)

Exactly which day did it become effective? If it is before January 3, it is beyond doubt kosher since it did not happen during the term for which she was elected. And my understanding from the article is that Congressmen don't become such for purposes of the Ineligibility Clause until they are sworn in, which I think happened Jan 6.--Wehwalt (talk) 05:12, 5 March 2009 (UTC)

I agree that she is in. This seems to me to be identical to the Rumsfeld situation. I think Hilary got the Jan 2007 bump, so Solis would get the Jan 2009 bump. Thus, Solis should be ineligible for the 2010 and 2011 bumps. If we have nothing to go by than maybe we do omit her. I will go with consensus.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 05:15, 5 March 2009 (UTC)

Congress voted to deny itself the 2010 pay raise. I'm not sure if that applies to Cabinet officers.--Wehwalt (talk) 05:18, 5 March 2009 (UTC)

I personally think there should be a public law setting her salary so that she surrenders two years of emolument increases, but maybe that does not need to be written until the 2010 bump becomes an issue. Was this vote a public law with a PL #?--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 05:20, 5 March 2009 (UTC)

(ec^2)As I advocated over a week ago with this edit, I think any mentions of Solis should be commented out or removed, until we know for certain what the deal is with her. It's always better to leave something out that you're not sure of, than to include something that turns out to be wrong. Wasted Time R (talk) 05:20, 5 March 2009 (UTC)

I would agree with WTR. We are not sure there is an ineligibility problem with Solis, we can simply mention that no Saxbe Fix was attempted for her. As for the pay raise, now that I look more carefully, it is Steny Hoyer saying they are going to give up their pay raise, may not have passed yet, see this--Wehwalt (talk) 05:23, 5 March 2009 (UTC)

I'm not advocating "mentioning that no Saxbe fix was attempted for her", because that raises the question of whether she should have needed one or not. I'm advocating saying nothing at all about her, and awaiting future developments and/or WP:RS discussions of her case. Wasted Time R (talk) 05:26, 5 March 2009 (UTC)

Do we mention that Solis will be serving in the cabinet during a term to which she was elected that does not expire until Jan 3, 2011?--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 05:28, 5 March 2009 (UTC)

(outdent) I agree again with WTR. Let's not mention her and await events. We'd look awfully silly if it turns out the increase was effective January 1, i.e. last term. I am not certain she is barred from accepting increases because the appointment is the defining event. While the practice has been to freeze the salary until the term expires, I don't think it is required, indeed I remember from the Times articles that they discussed raising Knox's salary back up once they got him confirmed. They didn't, but the House had been balky and it might not have been worth the trouble.--Wehwalt (talk) 05:31, 5 March 2009 (UTC)

(ec)It seems that the cost of living increases come at the end of the term. Thus, the 2009 occured before noon on Jan 3. Would it be inappropriate to mention that "There are three Cabinet members serving who have unexpired elected terms and that two of them have required Saxbe fixes?" That would seem to be the most complete statement that we could make about the situation.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 05:38, 5 March 2009 (UTC)

That's reasonable. I hope they didn't raise Rahm Emanuel's salary.--Wehwalt (talk) 05:42, 5 March 2009 (UTC)

Then we put the picture back in with a caption

• Barack Obama (left) has three cabinet members serving him during unexpired elected congressional terms. He has used the Saxbe fix to appoint Hillary Rodham Clinton (left center) as Secretary of State and Ken Salazar (right center) as Secretary of the Interior. Hilda Solis (right), the Secretary of Labor, also has an unexpired term.

(outdent, d-mn it!) Hm. That might be pushing it a bit far, to actually use the names. I don't know put it in and let's see how it looks.--Wehwalt (talk) 05:53, 5 March 2009 (UTC)

We have 18 hours before this hits the main page. Let's get the language right. The article has pictures of everyone. If we say he has three cabinet member and we know their names we should include their names in the article. I am asking for advice on phrasing so we don't get bumped off the main page for last minute instability.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 05:57, 5 March 2009 (UTC)

• Better phrasing: *Barack Obama (left) has three cabinet members serving him during unexpired elected congressional terms. He has used the Saxbe fix to appoint Hillary Rodham Clinton (left center) as Secretary of State and Ken Salazar (right center) as Secretary of the Interior. Hilda Solis (right), the Secretary of Labor, is also serving during an unexpired elected term.

I think that presents the reader with the most complete non-controversial set of facts that we have.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 06:02, 5 March 2009 (UTC)

Well, yeah, but it kinda makes the reader wonder "Why didn't Solis get a Saxbe fix?", a question we are not prepared to answer.--Wehwalt (talk) 06:04, 5 March 2009 (UTC)

We can only present facts we have. If they lead to further questions, that is not our problem. All I am saying is present the most complete set of relevant facts.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 06:09, 5 March 2009 (UTC)

I guess. I'm not wild about the idea, but I don't have a better alternative.--Wehwalt (talk) 06:13, 5 March 2009 (UTC)

Well, I guess the alternative is "Barack Obama (left) has two cabinet members who have recieved Saxbe fixes. Congress has used the Saxbe fix to make Hillary Rodham Clinton (left center) eligible for appointment Secretary of State and Ken Salazar (right center) as Secretary of the Interior. --Wehwalt (talk) 06:16, 5 March 2009 (UTC)

It removes facts that are relevant. I personally prefer to present information about Solis that is not controversial, but that is relevant. I think we are whitewashing the article be removing her.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 06:20, 5 March 2009 (UTC)

That Solis didn't get a fix is only marginally relevant without a source explaining why. Since we can't really explain it, we needlessly create the implication that she should have received one. The only alternative I can see to saying nothing is noting that no pay increase happened during during the current term. It would apply with equal force to Rahm, wouldn't it? -Rrius (talk) 06:23, 5 March 2009 (UTC)

Pardon this last if it is disjointed. I have been enjoying some wine. -Rrius (talk) 06:24, 5 March 2009 (UTC)

(edit conflict) This is an article about the Saxbe fix, and Solis didn't get one and will not get one (it's too late). If someone can find a good source explaining why she didn't need one, then we could include that. Without it, we are only inviting confusion by mentioning her. By the way, can someone widen Obama/Clinton/Salazar pics in the gallery? -Rrius (talk) 06:21, 5 March 2009 (UTC)

(ec) "Barack Obama (left) has two cabinet members who have recieved Saxbe fixes. Congress has used the Saxbe fix to make Hillary Rodham Clinton (left center) eligible for appointment Secretary of State and Ken Salazar (right center) as Secretary of the Interior. Additionally, Hilda Solis (right) is serving as Secretary of Labor during an unexpired elected term." would seem better to me. Although the article is about Saxbe fixes it discusses several situations that did not result in fixes. This is as relevant as Hatch, Rumsfeld, etc. except that we have no sources beyond the fact that she is serving an unexpired term.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 06:26, 5 March 2009 (UTC)

(outdent again)Except we can offer the reader no info on Solis's need for a fix, and we are not even sure if there is such a need.--Wehwalt (talk) 06:28, 5 March 2009 (UTC)

We are fairly certain she did not get one before entering office. We have no WP:RS making any statement about the relevance of the consideration of giving her one. We are unsure about her eligibility for pay raises while in office. None of this should go in the article. However, we know that she is serving an unexpired term. When the 2010 raises are determined, she may or may not be affected by the Ineligibility Clause. We do not know. We know she is serving an unexpired term and that is relevant to a study of the fix and its possible implications. That is all we should say. Removing her because she did not get a fix is possibly like removing Rumsfeld or Hatch because we have relevant facts.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 06:33, 5 March 2009 (UTC)

Yeah but Tony, isn't pointing that out in the "Saxbe fix" article tantamount to saying to the reader "Maybe she should have had a Saxbe fix too."? After all, we don't know whether that fact is relevant to anything or not. It is our ignorance.--Wehwalt (talk) 06:39, 5 March 2009 (UTC)

I think we are in agreement that there was no relevant fix for 2009. I think this presents the reader with facts that there may be a relevant issue for 2010 and 2011 pay increases, but we are not saying anything either way. All we should say is that she is serving an unexpired elected term that ends in 2011. We should not say whether Saxbe is relevant to her or not. Relating the Saxbe fix to her is OR and POV. Saying she is serving an unexpired term is stating an uncontroversial and relevant fact that we are all in agreement with.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 06:43, 5 March 2009 (UTC)

Since I am not certain that the Clause governs salary once the officeholder is confirmed, I can't say it is irrelevant. I'm still troubled, though.--Wehwalt (talk) 06:49, 5 March 2009 (UTC)

(edit conflict) Read the Ineligibility Clause, everyone. There is nothing in it about future pay increases. The only thing prohibited: being appointed when certain circumstances exist. There is nothing in the Constitution regarding future pay increases for executive officials other than the President. Dreaming up something about Solis not being able to take future pay increases is OR at best, and pulling stuff from thin air at best. The only thing that is even remotely related to future increases is the text of the actual Saxbe fixes for Clinton and Salazar, which have future effect. That the Congress drafted the fixes that way does not create a new constitutional prohibition on pay increases for Solis. If Solis has a Saxbe problem, her appointment was unconstitutional and she is not the legal Secretary of Labor. If she is the legal Secretary, she has no problem under the Ineligibility Clause. Full stop. -Rrius (talk) 07:00, 5 March 2009 (UTC)

We know the Clause governs persons appointed to serve during unexpired elected terms. We know she has been appointed to serve during an unexpired elected term. It is a relevant fact. We should say that and no more.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 06:57, 5 March 2009 (UTC)

I'm going to go to bed and see if there have been fresh arguments in the morning. Jeez, it is 2 a.m. And me still jetlagged.--Wehwalt (talk) 06:58, 5 March 2009 (UTC)

(edit conflict) Saying that and nothing more creates a false impression. We should just not mention it. -Rrius (talk) 07:00, 5 March 2009 (UTC)

The impression should be that she is serving and no fix has been issued, which is not false. I am a WP:PRESERVEationist when it comes to WP. I attempt to preserve all facts in articles. The fact that we have is that she is serving an unexpired term. The reader is free to read into it, but there is no support from secondary sources for changing the article to say any more (or less). The text should read "There are three Cabinet members serving who have unexpired elected terms and that two of them (Clinton and Salazar) have required Saxbe fixes" —Preceding unsigned comment added by TonyTheTiger (talk • contribs) 07:20, 5 March 2009

I am fine with statement in quotation marks. The previous versions created a false impression that the editors here believe there should have been a Saxbe fix for Solis. -Rrius (talk) 08:14, 5 March 2009 (UTC)

That is the text contribution. Below, I discuss the image and caption. Please comment there.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 08:26, 5 March 2009 (UTC)

I think the thing is, that no one who has received a Saxbe fix has ever gotten a raise (that we know of) during the elected term. If it is not law it seems to be very strong custom. Raising salary after confirmation was considered and rejected in the Knox case.--Wehwalt (talk) 07:03, 5 March 2009 (UTC)

We don't want to go as far as discussing raise or fix with Solis. We don't want to lead the reader beyond any facts that we have. Let's not discuss raise or fix with Solis. Let's just say she is serving an unexpired elected term. It is an unconroversial and neutral term. It does not say whether she should or should not be effected by the Clause and/or whether a fix is germane.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 07:11, 5 March 2009 (UTC)

If you don't like the following image caption: "Barack Obama (left) has two cabinet members who have recieved Saxbe fixes. Congress has used the Saxbe fix to make Hillary Rodham Clinton (left center) eligible for appointment Secretary of State and Ken Salazar (right center) as Secretary of the Interior. Additionally, Hilda Solis (right) is serving as Secretary of Labor during an unexpired elected term."

How about: "Barack Obama (left) has three cabinet members who are serving during unexpired elected congressional terms: Hillary Rodham Clinton (left center), Ken Salazar (right center) and Hilda Solis (right). Congress has used the Saxbe fix to make Clinton eligible for appointment Secretary of State and Salazar as Secretary of the Interior."—Preceding unsigned comment added by TonyTheTiger (talk • contribs) 07:20, 5 March 2009

Proposed tweak to the above: "Barack Obama (left) appointed three sitting Members of Congress to the Cabinet: Hillary Rodham Clinton (left center), Ken Salazar (right center) and Hilda Solis (right). Congress passed Saxbe fixes to make Clinton eligible for appointment as Secretary of State and Salazar as Secretary of the Interior."

Morning thought: I agree that we should mention Solis, if we knew what to say about her. Since we don't, I would leave her out for now. The current mention: "There are currently three Cabinet members serving who have unexpired elected congressional terms and two of them (Clinton and Salazar) have required Saxbe fixes." is vague and oblique enough that I can live with it, though. Wasted Time R (talk) 13:51, 5 March 2009 (UTC)

Concur.--Wehwalt (talk) 14:30, 5 March 2009 (UTC)

We have all concurred to the text language. Now just above this we are working on the language of the caption. To recap, the last three tweaks of the caption are as follows:

"Barack Obama (left) has two cabinet members who have received Saxbe fixes. Congress has used the Saxbe fix to make Hillary Rodham Clinton (left center) eligible for appointment Secretary of State and Ken Salazar (right center) as Secretary of the Interior. Additionally, Hilda Solis (right) is serving as Secretary of Labor during an unexpired elected term."

"Barack Obama (left) has three cabinet members who are serving during unexpired elected congressional terms: Hillary Rodham Clinton (left center), Ken Salazar (right center) and Hilda Solis (right). Congress has used the Saxbe fix to make Clinton eligible for appointment Secretary of State and Salazar as Secretary of the Interior."

"Barack Obama (left) appointed three sitting Members of Congress to the Cabinet: Hillary Rodham Clinton (left center), Ken Salazar (right center) and Hilda Solis (right). Congress passed Saxbe fixes to make Clinton eligible for appointment as Secretary of State and Salazar as Secretary of the Interior."

Please comment on one of these or help create another version.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 15:28, 5 March 2009 (UTC)

Tony, I'll take curtain number 3.--Wehwalt (talk) 16:03, 5 March 2009 (UTC)

My initial sense, having looked through the arguments put forth here (joining the party late), is to either leave Solis out (didn't we have this discussion while the article was FAC??) or mention her briefly in the text, but NOT have a photo of her, as that just draws attention to the fact that we have not been able to figure out what the deal is regarding her eligibility/fix status. —Mattisse (Talk) 17:19, 5 March 2009 (UTC)

It passed at FAC with her in. We have agreed to remove all association rollbacks, salaries and fixes from Solis, but to include her as a Sitting member of Congress appointed to the Cabinet. Given the extent of people like Hatch, Black, Rumsfeld, etc. who did not have fixes, this brief mention seemed appropriate and prior to your last minute call seven minutes after the article was changed accordingly was agreed to.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 17:31, 5 March 2009 (UTC)

I seriously doubt that the decision on FAC turned on whether Hilda Solis was included. Featured Articles are changed all the time without losing their status, and removing Solis is not so major that there is any realistic prospect it would change anything. Certainly no one is going to say, "Oh, God, you guys removed Solis; we can't run this article on the Main Page now." Whatever reasons exist for including or excluding her, the article's status and its being featured tomorrow shouldn't be among them. I can see the argument for settling the issue before tomorrow, but none of this dictates a decision in one direction or the other. -Rrius (talk) 21:50, 5 March 2009 (UTC)

27th Amendment paragraph

I don't like this at all. It is effectively entirely unsourced and speculative, not to mention violating WP:WEASEL. Suggest we delete unless it is improved very quickly. The 27th Amendment really has nothing to do with the matter because Congress has never passed a pay variance since the Amendment was ratified. They have been relying on the COLA since before it took effect.--Wehwalt (talk) 03:20, 6 March 2009 (UTC)

My first edit after Saxbe hit the main page was its removal. It reappeared with one source. I moved it from the WP:LEAD and tagged it furiously. We should watch it. If I wake up and find the tags have not been replaced, I will remove it.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 03:26, 6 March 2009 (UTC)

The source was not a source. It pointed out in one section that there is a 27th Amendment and what it says, and in another mentioned the Saxbe fix. -Rrius (talk) 03:38, 6 March 2009 (UTC)

Thanks for removing it. I don't care to get too close to 3RR, you know how it is.--Wehwalt (talk) 03:41, 6 March 2009 (UTC)

There were FIVE sources - which one are you talking about? The effect of the 27th Amendment on the Saxbe Fix (and several other devices used by both the Federal houses and several State legislatures) is a serious and new one that really came up with Obama' Inauguration. The fact that you do not seem able to understand the sourcing does not mean it is trivial nor meaningless. I have restored it - until you have a specific and verifiable reason for removing it, please leave it there. Your opinion is not authoritative. The sources I had originally were, before you know it all's vandalized the sources or removed them because you were too lazy to read them were on point and acccurate. Please don't edit something you have declared to be asinine simply because you fail to understand it. Of course that is the problem with Wikipedia at large - people who have no clue about a subject and the inherent issues underlying them simply reduce the material to the lowest common denominator. I am a University and Law professor, and I assure you I DO know what I am talking about, especially with this issue. For instance, whichever person removed my reference to the current Judicial Watch class action suit against the White House regarding the Saxbe Fix used to allow Hillary Clinton to assume office is a huge case, but it was vandalized and removed from my referencing. You sir need to go back and re-read your own suggested reading for others regarding what is appropriate according to Wikipedia's requirements. TonyThe Tiger seems to have vandalized my references and then tagged them because the were not proper references. THIS kind of nonsense is why Wikipedia has so many legitimacy problems -illegitimate and ignorant editors who have no clue what they are talking about. Also Wehwalt, they have NOT been relying solely on the Federal COLA, but also on the specific COLA's in 5 regional MSA's (Metropolitan Statistical Areas) averaged together WITH the Federal COLA formula. Just another example of people editing when they don't fully understand the issue. Please do some independent research before you (which ever one did it) go vandalizing other's references so that you can then say that the references are not in fact legitimate. Joseph Heller would have loved you folks. Or did anyone here bother to read Catch-22, or did you just see the movie?Themoodyblue (talk) 03:56, 6 March 2009 (UTC)

There were three sources, one to a constitutional law treatise that mentioned the fix but did not relate it to the 27th Amt. The second was to the 27th Amt. and the third was Marbury. None of which justified what was said.--Wehwalt (talk) 04:03, 6 March 2009 (UTC)

"None of which was justified" based on what information or authority? Your opinion? Since when did your opinion become the law of Wikipedia? What unbelievable arrogance...Themoodyblue (talk) 04:06, 6 March 2009 (UTC)

At the point I reverted, there were two things in ref tags. The first was a link to the constitutional law treatise, or whatever it was, at Google Books. The other was the phrase "The 27th Amendment of the United States Constitution". In my contribution above, I was referring to the former. As Wehwalt said, neither establishes the principle asserted in the controversial text. -Rrius (talk) 05:27, 6 March 2009 (UTC)

A consensus has been reached by the intellectual standards present here - its my opinion and so that is all that matters, right? That is precisely the argument you are making without having the courtesy to give any facts to back up your opinion. I have. On the other hand, tell you what - vandalize away. Clearly accuracy and factual integrity are simply not part of the equation here. Do whatever you want. It is not worth my time arguing about what I teach everyday. Life is too short. Themoodyblue (talk) 04:08, 6 March 2009 (UTC)

Please source your content.--TonyTheTiger (t/c/bio/WP:CHICAGO/WP:LOTM) 04:18, 6 March 2009 (UTC)

I Already DID source it when I posted my edit. I do not have the time nor the responsibility to do them again after they were deemed by your opinion to be inadequate and then completely erased. I have presented my facts and citations, which was then intentionally and quite arrogantly dumped. Clearly accuracy and factual integrity are simply not part of the equation here. Why won't you present FACTS to back up your opinion about why your edit should stand and stand with the content you propose. You demand I do so, but you are exempt? Consensus is reached by everyone involved being held to the same standard and participating toward finding a consensus. It is not a process to justify having all of your edits stand and everyone else's work give way to your opinion. Present facts or be quiet and stop vandalizing other's work. Please show me your facts and figures if you think I am wrong. If I see that I am I will be the first to admit it, however, your presenting your opinion and simply changing my edits back behind me so taht you "win" is something else entirely. It is intellectual arrogance and, more importantly, intellectual fascism. A consensus means that ALL opinions should heard, not just the loudest one's. Your vandalizing and ad hominum belittling of others are not facts - only facts and facts. Let's see yours. Specific, documented facts. I had mine in the article and they were vandalized. Erasing other's facts does not make your opinion true. Let's discuss and reach a consensus. Or are you simply wanting to impose your opinion as the consensus. In that case, it is anything but. Themoodyblue (talk) 04:08, 6 March 2009 (UTC)

I suggest you read WP:V. You present information in your edits that cannot be found in the provided sources. You stated, for example, that it is likely that the Supreme Court will decide the constitutionality of the Saxbe fix. The ref is to Marbury v. Madison. Nowhere in that case does it say that.--Wehwalt (talk) 04:28, 6 March 2009 (UTC)

In that case I must seriously question if you actually read the cited sources. I did, and that is why I placed them in the reference. If you actually read the cites in their entirety in the time it took to respond and change my work, I will buy you Cubs season tickets. You and I both know that either a) you skimmed the sources and missed the pertinent material or b) are one of the 10 fastest readers in North America. You having rollback rights does not give you censorship rights. I am curious, which sources did you read in their entirety to determine that they were irrelevant and vacant sum topic? Please be specific as to source and page number so I can follow along. Themoodyblue (talk) 04:32, 6 March 2009 (UTC)

I am very familiar with Marbury v. Madison. Where does it say SCOTUS is likely to decide the Saxbe fix?--Wehwalt (talk) 04:37, 6 March 2009 (UTC)

Where does it say it is NOT? The entire principle of Judicial Review would tend to argue that might, and usually eventually does, happen.Themoodyblue (talk) 04:44, 6 March 2009 (UTC)

Also WehWalt, look in the "Precedents" section, item 2, and note 85 which others also cited as important. The principle of Judicial Review, which is what Marbury v. Madison and its antecedents and postcedents establish and define is essential to an issue of Constitutional establishment and limitation of emoluments and separation of powers. How Marbury is essential to this debate would simply take too long to explain in any detail, especially since the current debate (let's be honest here) seems not to be concerned with listening and learning, nor reaching consensus, but about you being in charge and winning the edit war. Are you really concerned about accuracy at all, or are you simply wanting to throw your weight around and be in charge? As much as I hate to say it, that is what it sounds like to me - a bunch of my second year law students in the student lounge debating simply to win the debate, with no regard to the content or accuracy of the debate's contents at all. And I am sorry that is the attitude that seems to be prevalent here, rather than the seeking and sharing of knowledge. Themoodyblue (talk) 04:45, 6 March 2009 (UTC)

Thank you for your views. I note your comments about control and all that. I am not the lead editor on this article; I simply did some editing and am here helping out on Main Page Day. While Marbury stands for the principle of judicial review, that does not equate to stating that the SC will decide a given issue. It is actually rather unlikely that there will be a SC decision on the merits, on the Saxbe fix, both for standing issues and under the political question doctrine. As for throwing around weight, I have done no such thing. I removed the material once, other editors did it the other times. Thanks for your input though.--Wehwalt (talk) 04:50, 6 March 2009 (UTC)

This is just getting silly. That the Court could review the Saxbe fixes enacted by Congress if they were properly before the Court is not in doubt. What you said is that it is likely the Court would rule on the issue. That is not something you can prove. It is quite possible (I would argue likely) that Court will let the lower court ruling stand. In any event, you have failed to provide any evidence that anyone other than you holds to the 27th Amendment argument. It is not enough for you to establish that the portions of the text exist and make argument based on them. You must establish through reliable sources that some expert or experts argue that the 27th Amendment is in any way relevant here. To this point, you have failed utterly to do so. Your continued accusations that others are throwing their weight around (despite doing the selfsame thing) is not at all helpful, and your arguments without actually setting forth evidence that "experts believe" your theory are a waste of everyone's time. It may be helpful to refresh your knowledge of WP:V, WP:RS, and WP:SYNTH. -Rrius (talk) 05:38, 6 March 2009 (UTC)

I'll echo the comments of others here. The proposed paragraph was improperly placed (didn't belong in the lead), inadequately sourced in terms of the conclusions being drawn, and woefully formatted in terms of FA standards. The ranting and raving of the editor involved gives no confidence in his or her understanding of WP guidelines or in the quality of the proposed material. We probably do need to mention somewhere in the article what effect if any the 27th Amendment has on the topic, but this was not even close to the right way of doing it. Wasted Time R (talk) 14:50, 6 March 2009 (UTC)

There's really nothing to mention regarding the 27th Amendment. Raising Congressional salaries through automatic COLA has been held not to violate the 27th Amendment. There is no real relationship, as a salary increase through COLA works just the same way as one through a Public Law for Saxbe fix purposes. We could add a see also to the 27th, I guess, since they are related topics.--Wehwalt (talk) 15:20, 6 March 2009 (UTC)

"Raising Congressional salaries through automatic COLA has been held not to violate the 27th Amendment." To the contrary, that is PRECISELY what it has been held to say. The 27th Amendment made the public laws that you are citing unconstitutional. COLA raises can not violate the Constitution. Automatic intrasession COLA raises are exactly what this Amendment was designed to prevent, and why it took so long for this Amendment to pass (over 200 years). Themoodyblue (talk) 17:59, 6 March 2009 (UTC)

I appreciate the thought, but all of what you just said is contradicted by Wikipedia's article on the 27th Amendment to the United States Constitution.--Wehwalt (talk) 19:27, 6 March 2009 (UTC)

The Twenty-Seventh Amendment was written during the First Congress. The issue had nothing to do with automatic COLA increases because they didn't yet exist. Stop wasting our time. -Rrius (talk) 23:00, 6 March 2009 (UTC)

Thanks genius - COLAs did not exist during the third Congress (the first that met after the First Inauguration - no doubt you might have heard of the first and second Continental Congresses - that was the "First" Congress. The 27th Amendment is totally relevant to modern day COLA's in terms of compensating elected officials across branches of government. The historical fact that it took 212 years to ratify this amendment does not change its relevance to today's COLAs and other rules for compensation of elected officials moving from the Legislative to the Executive. And WehWalt, read Wikipedia's own rules about using Wikipedia as a reference for other articles. Using the 27th Amendment article on Wikipedia is, by Wikipedia's own rules, inappropriate. However, this bunch writes it rules to suit its own egos, so facts don't really matter, do they? Clearly not so far. I pray I get one of you geniuses in one of my first year law classes. What you know about the law is non-existent. Themoodyblue (talk) 21:43, 7 March 2009 (UTC)

(1) Once again you show you don't know what you are talking about. See 1st United States Congress. (2) You said, "Automatic intrasession COLA raises are exactly what this Amendment was designed to prevent, and why it took so long for this Amendment to pass (over 200 years)." I said that was wrong for the reason stated. Whether the amendment is relevant is not the point; it was not designed to prevent automatic COLAs because COLAs didn't exist—once again, you were wrong. (3) WehWalt was making the point that you evidence of yet another thing you are wrong about is so readily available that you could have found it on Wikipedia. He was not seeking to use Wikipedia as a source for a claim made in a Wikipedia article. Your lack of clarity on what it means to not use Wikipedia as a source shows once again that you need to brush up on WP:Verify. The ad hominem "thanks genius" shows you may need to brush up on WP:Talk and WP:NPA as well. -Rrius (talk) 04:23, 8 March 2009 (UTC)

FA

how get i featured article? —Preceding unsigned comment added by 94.212.216.150 (talk) 13:24, 6 March 2009 (UTC)

WP:FAC. It's not easy. Wasted Time R (talk) 13:39, 6 March 2009 (UTC)

My favorite vandalism during TFA Day was this one, which replaced the entire article with the biography of L. Ron Hubbard! Wasted Time R (talk) 00:40, 7 March 2009 (UTC)

Probably the guy thought it would transclude to the main page. Didn't last long either way.--Wehwalt (talk) 01:38, 7 March 2009 (UTC)

Precedent unclear

In the "Precedents" section's list, item 5 says "According to McLean v. United States, 'Emoluments' means more than salary." If that is true, then what does the term "Emoluments" actually imply? Does it include "forage, rations, and pay" as stated in the sentence's source, McLean v. United States, or does the term go even further to include all forms of compensation, such as pensions and benefits?--Dem393 (talk) 23:53, 6 March 2009 (UTC)

"Emoluments" in the current law imply anything of value that is given in exchange for one's status as an elected official, absent those perks necessary for proper security and safety of the official. In a strict reading "Emoluments" would mean anything that an elected official receives in direct or fairly indirect compensation for, or in recognition of, or by the authority of, their office. Traveling around the world on Congressional "fact-finding" junkets have been argued unsuccessfuly in court cases to be "Emoluments". Other things in the case law, such as pensions, personal allowances, franking privileges (remember the House Bank and Post Office Scandals?) and other benefits are traditionally considered "Emoluments" on top of standard salary. I hope this answer helps. The Mirriam-Webster has two definitions: 1) the returns arising from office or employment usually in the form of compensation or perquisites, and 2)[archaic] advantage. Themoodyblue (talk) 21:52, 7 March 2009 (UTC)

I apologize for not making myself clear. Instead of asking for a definition for my own personal knowledge, I was actually recommening that the "Precedents" section be revised to elaborate on what "emoluments" actually refers to. (I should have been more clear about that, sorry!) Given the information you just gave me, I think the section should say, "According to McLean v. United States, 'Emoluments' means not only salary, but also forages, rations, pensions, personal allowances, franking priveleges, and other benefits." The list of emoluments itself can be shortened to an appropriate size, but I really think that the list should exist.--Dem393 (talk) 23:02, 7 March 2009 (UTC)

Rodearmel v. Clinton

Hello! I'm interested in getting some information about the case Rodearmel v. Clinton, mentioned in the "21st century" section, and the lawsuit basically claims that Hillary Clinton can't legally serve as the Secretary of State. I tried to ask about this at Wikipedia:Reference desk/Humanities, but I haven't gotten a good response.

This Fox News video clip on Youtube talks about the lawsuit, and the reporter said about 1:55 into the video that Clinton had 60 days to respond to the lawsuit. However, 60 days have passed, and according to this website, the only filing that could resemble a response was a "Notice of Appearance by Jeffrey Michael Smith on behalf of all defendants".

Therefore, was this "Notice of Appearance" supposed to be Clinton's actual response to the lawsuit? If so, it seems like the reporter on Fox kept the viewers in a 60-day suspense for nothing. I hope I'm not misinterpreting any of the information I'm looking at...--Edge3 (talk) 03:12, 19 April 2009 (UTC)

There's been pretty much nothing in the regular press about this matter since the lawsuit was filed; I think most observers believe the case will be thrown out. As for the website, it's hard to understand what court dockets and records are saying unless you're a lawyer familiar that the jurisdiction in question. It's also possible that Fox News got the '60 days to respond' part wrong. But don't worry; on the remote chance that this suit moves forward and presents a real threat to Clinton's secretaryship, I'm sure the press will start covering it. Wasted Time R (talk) 03:32, 19 April 2009 (UTC)

I am a lawyer, and it is very common for deadlines to be extended by agreement of the parties. Besides, per Federal Rule of Civil Procedure 55(d) you can only get a default judgment against the U.S. if you establish your right to relief, i.e. show evidence that says that you are entitled to win. But almost certainly there's an agreement extending time.--Wehwalt (talk) 12:01, 27 April 2009 (UTC)

According to the docket sheet, on April 21, 2009, the Court signed an order extending Defendant's time to respond to the Complaint until May 20, 2009. On that day, Defendant filed a motion to dismiss the Complaint. The next step is that in a few weeks, the Plaintiff will file a response to the motion. Newyorkbrad (talk) 13:47, 21 May 2009 (UTC)

Anyone who thinks that motion won't be granted, I have a bridge in Brooklyn for sale on very reasonable terms.--Wehwalt (talk) 15:57, 21 May 2009 (UTC)

I just read the motion to dismiss the complaint. I am very disappointed in how anticlimactic this all seems now. Clinton is NOT going to get kicked out anytime soon... --Edp318 (talk) 18:36, 24 May 2009 (UTC)

Cheer up, maybe Obama will appoint her to the Supreme Court. But the memo and the exhibits, to be found here is well worth reading, especially since the 1987 opinion is one of the exhibits.--Wehwalt (talk) 18:54, 24 May 2009 (UTC)

Yes, they are interesting. And there seem to be some historical occurrences discussed in them that aren't included in this article. Wasted Time R (talk) 19:04, 24 May 2009 (UTC)

OLC opinion

I believe the Office of Legal Counsel just released a legal memorandum discussing the issue and how Clinton and Salazar appointments do not violate the constitution. You can find the memo here - [2]. I think this would be useful to include somehow in the article. Remember (talk) 13:54, 24 June 2009 (UTC)

External link?--Wehwalt (talk) 14:37, 24 June 2009 (UTC)

An external link section would be good, but I also think that someone should review the memorandum to see if it has any further information that is not included in the article. Remember (talk) 15:11, 24 June 2009 (UTC)

Probably Tony should do it. It would be less work for him since he is more familiar with the article than us.--Wehwalt (talk) 15:21, 24 June 2009 (UTC)

I already included this last night, in this edit. Wasted Time R (talk) 23:36, 24 June 2009 (UTC)

Trump's cabinet

Are there any Saxbe-relevant nominees, so far? (And if not, should this article mention that Sessions/Price/etc are NOT impacted? Assuming sources have covered the question, of couse....) Jeff Sessions is a Senator, Tom Price is in the House, as is Mike Pompeo. There are several spots left open. I tried a quick search or two for emoluments, but there is too much noise related to speculation about the gifts-from-foreign-governments-clause, as opposed to the voted-yourself-a-salary-increase clause. 47.222.203.135 (talk) 21:16, 6 December 2016 (UTC)

In the context of appointments to a brand-new administration, the clause wouldn't apply to any Representatives, because it only applies to a Representative's or Senator's appointment to an office whose salary was raised during his or her current term in office. All Representatives' current terms will end at 12 noon on January 3rd, and the earliest a Trump appointee could take office is January 20th.

The salary for cabinet positions was increased as of January 1, 2016, but it was an automatic adjustment for inflation (5 USC § 5318)—I'm not sure if that's deemed sufficient to trigger the clause or the need for a fix. Newyorkbrad (talk) 22:28, 6 December 2016 (UTC)

No Senator or Representative shall,
during the Time for which he was elected,
be appointed to any civil Office...
the Emoluments whereof shall have been increased
during such time;...

I guess I'm reading the clause differently ...incorrectly... ahistorically.[3] I agree that Price is going to be 'between' terms at some point when the 114th ends (2015-2016) and prior to the 115th beginning (2017-2018), but he *was* elected to both. Plus many prior terms as well. Which means that, "during the Time for which he was elected" (2005-2018), Price will be appointed as SecHHS. And as you point out, the emoluments thereof were increased "during such time" (2005-2018). Or does the second 'such time' not refer to the prior 'Time'-span?

Actually... it sounds like you are saying that Price was elected to serve Jan.2017-Jan.2019 a few months ago, and that he can take that legislative branch elected-office on January 3rd, resign on January 4th, accept an executive branch appointed-role on January 5th, and be fully in the clear. Even if salaries were boosted two weeks earlier, as part of the tail end of the 114th congress? If so that would be weird, but then again, that sounds exactly like a federal loophole ought to. (I like the Madisonian suggestion of "while... in the legislature" / "during the time they were members thereof" but since that portion FAILED to get enacted, it seems implicitly that 'Time' / 'such time' is seen as NOT to actually refer unto 2005-2018, but rather to Jan.2017-Jan.2019 as you seem to be suggesting.) And indeed, there is a bit in the article which explains that what you said, is the Official Interpretation: Joseph Story in 1833, plus more recent actions by TR/Nixon/Clinton/Bush/Obama with accompanying legal opinions from their administrations justifying the overall idea.

...On the other matter, it does seem clear that Sen.Sessions will need a Saxbe fix, unless executive orders are legally considered to not be an increase in emoluments -- THAT interpretation sounds extremely far-fetched to my ears, but then, so does the current-term-only interpretation for Rep.Price!  :-) Sessions was elected in 1996, when the Ethics Reform Act of 1989 (pdfPage 54 here[4] roughly per [5]) was already passed to amend the Ethics in Government Act of 1978 (see also US v. NTEU / Waters v. Churchill), but I found some hits talking about Congress faux-fighting their own pay-raises,[6] in many later years. So pedantically speaking, Congress is still in charge of all pay-raises, even those which previous congressional actions delegated to the potus, since every congress has the implicit opportunity to block/alter/repeal such automatic increases.[7][8] All that said, I have not found a source which says one way or the other, whether Sessions specifically needs a Saxbe fix, so I suppose we wait patiently for that eventuality. 47.222.203.135 (talk) 09:46, 13 December 2016 (UTC)

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