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November 25, 2008

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ShelbyC

"too much textualism"?? try "any" textualism. Can we ingore any part of the Constitution if we can think of a scenario that would lead to an undesireable result? Giving Congress the legisltaive power means that a hostile congress can pass absurd laws! Therefore interpreting the Constitution as giving Congress the power to pass laws is too much textualism!

Uzair Kayani

When textualists employ sarcasm, how do they understand what they say? I sometimes suspect that statutes are sarcastic.

DCLawyer

Prof Levmore,

Thanks for this thoughtful post. I'd like to add a couple points here.

First, you say that "Some suggest that a new law could be passed in order retroactively to return the salary to its pre-Senate-election level." In fact, this has been done several times. The first was for AG William Saxbe. The author of the DOJ opinion blessing the use of the such a device was Robert Bork.

Next, I agree entirely with your point that we should eschew a textual reading when it leads to odd results. However, in this case the text is up for grabs (i.e. if Congress negates a pay increase, has the pay been increased? Some say yes, some no).

Finally, I don't think the President can unilaterally change salaries. I BELIEVE what happened here was that the federal law (enacted I think before HRC's current Senate term) provided for a COLA, which the EO made operational. This raises a couple of interesting questions:

Does a COLA amount to an increased salary?

Would it make a difference if the statute implementing it was enacted during the appointees term in Congress rather than prior?

I think that there are a lot of interesting questions raised by this appointment, but it probably shouldn't turn on a constitutional ambiguity.

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