Earlier Friday, we reported on a Democratic measure that would have docked the pay of members of Congress and the president during a forced government shutdown.
The House ultimately rejected the measure — but not before Republicans surprised Democrats by announcing that the White House had told them that the legislation was unconstitutional.
After the jump is what the White House liaison’s office told Rep. Dan Lungren (R-Calif.), the chairman of the Committee on House Administration, arguing that the proposal for docking the president’s pay would violate the Constitution and that similar questions could be raised for docking the salaries of members of Congress.
From the White House liaison:
S. 388 would provide that “Members of Congress and the President shall not receive basic pay for any period” in which there is a more than 24-hour lapse in appropriations for any department or agency or any period in which the public debt limit has been reached. S. 388, § 1(a). The bill would also prohibit retroactive payments to Members of Congress or the President of “pay forfeited” under the bill. Id.§ 1(b).
If enacted, S. 388 would violate the Compensation Clause in Article II of the Constitution. That clause provides that “the President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected.” U.S. Const., art. II, §1, cl. 7; see also 3 U.S.C. § 102 (The President “shall receive in full for his services during the term for which he shall have been elected compensation in the aggregate amount of $400,000 a year, to be paid monthly.”). S. 388 would permit Congress to bring about circumstances during the President’s term that would disrupt payment of his previously guaranteed basic pay, and would also foreclose any retroactive payment of that “forfeited pay.” The bill would therefore “diminis[h]” the President’s “Compensation” within the meaning of article II, §1, cl. 7, thereby violating the Constitution. And depending on the nature of the disruption, the bill might also prevent receipt of the President’s Compensation “at stated Times,” also in violation of the Constitution. Cf. Federalist No. 73 (The Presidential Compensation Clause was drafted to address concerns that “[t]he legislature, with a discretionary power over the salary and emoluments of the Chief Magistrate, could render [the President] as obsequious to their will as they might think proper to make him.”).
Moreover, to the extent that section 388 would, by denying the President basic pay for his services, undermine the President’s ability to exercise his constitutional responsibilities, the provision would violate the separation of powers. Cf. Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3156 (2010) (“‘Even when a branch does not arrogate power to itself,’ . . . it must not ‘impair another in the performance of its constitutional duties.’” (quoting Loving v. United States, 517 U.S. 748, 757 (1996)); The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 135 (1996) (Legislation that “threatens the structural values protected by the general separation of powers principle” includes proposals that “unnecessarily interfer[e] with the flexibility and efficiency of executive decision making and action.”).
We further note that, with respect to members of Congress, S. 388 would raise significant constitutional questions. The Twenty-Seventh Amendment to the Constitution provides that “[n]o law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” U.S. Const., amend. xxvii; see also id. art. I, sec. 6 (“The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States.”). S. 388 could be read to permit a given Congress to immediately “vary” its own pay by making receipt of that Congress’s pay contingent on whether an appropriations lapse has occurred.