April 22, 2011 – Article II, Section 1, Clause 7 of the United States Constitution – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Article II, Section 1, Clause 7
7:  The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. 

The recent news of a precipitous drop in the president’s income (from $5.5 million in 2009 to $1.73 million last year) might give occasion to look at how the president is compensated. The Constitution provides for compensation that can’t be increased or decreased during a president’s term. So, a pay raise is out of the question to make up for the shortfall the president has experienced in book sales.

The Massachusetts Constitution of 1780 provided for a compensated executive and gave reasons for doing so. The provision specifies that a paid executive would not be unduly dependent on benefactors, would not be distracted from his duties by the need to earn money and would be able to maintain the dignity fitting such an officer of government. See Massachusetts Constitution, part 2, chapter 2, section 1, article 13. 

When the attention of the Philadelphia Convention turned to the question of paying the executive created by the Constitution on June 2, 1787, Benjamin Franklin objected with a written statement. His objection was that the combination of the desire for the prestige of the office and the desire for money would attract the wrong kinds of candidates. He also feared that the president’s salary might become so great that he would be tempted to use the power of the government to collect increasing tax revenue and that resistance to the high taxes would require more oppression in a spiraling cycle. Franklin thought the president ought not to be paid at all, and invoked the example of George Washington’s unpaid service as a general during the War for Independence as precedent. 

Franklin had been an architect of the ill-fated Pennsylvania Constitution of 1776 with its unicameral legislature, thirteen-person executive and no upper house in the legislature. This Constitution was copied by the French, ironically the same year Pennsylvania finally decided to replace it. Perhaps this ill-fated endeavor led the other delegates to mistrust Franklin’s advice on compensating the executive of the new national government. On July 20, the vote in favor of compensation was unanimous. 

Franklin still had an important role to play in drafting the clause as one of the delegates (with John Rutledge) who proposed adding the portion prohibiting the president from receiving additional emoluments from either one of the states or from the national government.

Noah Webster’s 1828 Dictionary defines “emolument” as: “The profit arising from office or employment that which is received as a compensation for services, or which is annexed to the possession of office, as salary, fees and perquisites.” Thus, this clause helps to preserve the system of federalism by preventing one state from seeking undue favor through payments to the president (which would, of course, look like, if indeed they were not, bribes). Prohibiting emoluments from the national government also precludes an end run around the requirement of a fixed salary that does not change during the presidential term. 

As an aside, it seems arguable that any fringe benefits in addition to salary might be constitutionally suspect depending on how strictly we understand the term “emoluments.”  This simple and clear clause has not been the subject either of much commentary or controversy. The first Congress did discuss the clause but only to ask whether it was appropriate to pay the Vice President since pay for that office was not specified in Article II. See Annals 1:646-651 (July 16, 1789). Congress eventually decided to pay the vice president $5,000 a year. The first compensation for the president set by Congress was $25,000. The president’s current salary was set by Congress in 2001 at $400,000.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

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