Previous presidents have ignored this provision in the Constitution by engaging in the legal fraud of rolling back the pay scale for certain senators who they wished to place in office despite the constitutional ban on doing so. The clear wording of the provision makes senators and congressmen “ineligible” — something that cannot be cured by simply reducing their pay. The Constitution says that such senators and congressmen cannot be appointed, not that special accommodations must be made for their appointment.
Nevertheless, President Richard Nixon dodged the law and with a complicit Congress selected Ohio Senator William Saxbe as his attorney general. Saxbe was appointed following the “Saturday Night Massacre” that had led to the resignation of Attorney General Elliot Richardson during the scandal-ridden Watergate years.
President Jimmy Carter used the “salary rollback,” or “Saxbe fix,” to put Senator Edmund Muskie in place as secretary of state; and President Bill Clinton utilized it to appoint Secretary of the Treasury Lloyd Bentsen.
President Ronald Reagan chose to stick to the plain language of the Constitution in making his Cabinet and Supreme Court appointments. So did President George W. Bush and George Herbert Walker Bush.
In the past, Democrats in the Senate have opposed the use of the so-called “Saxbe fix.” In the Saxbe case, ten Democrat senators voted against the ploy on constitutional grounds. Sen. Robert C. Byrd (D-W.Va.), the only one of the ten who still remains in the Senate, said at the time that the Constitution was explicit on this issue and that “we should not delude the American people into thinking a way can be found around the Constitutional obstacle.” Will he speak up again, or was his previous opposition to this unconstitutional artifice base on partisanship rather than principle?
More importantly, is President Barack Obama showing himself willing to abandon his sworn oath to “preserve, protect and defend the Constitution of the United States” before he even takes the oath?