The Constitutional Law of Official Compensation
Harvard Law School
Columbia Law Review, Vol. 102, No. 2, March 2002
In a system of separated powers, who (which branch or institution) should decide how officials are compensated for their services? Actors who enjoy the authority to determine compensation across or within branches might leverage that authority to obtain control over powers that the constitutional scheme entrusts to others. Yet it is not easy to devise institutional arrangements that avoid the risk of aggrandizement through control over salaries, without incurring unacceptable costs on other dimensions. The most obvious alternativev - diminishing leverage, or protecting independence, by allowing institutions to set their own compensation - creates the competing risk that members of those institutions will use the compensation power to engage in self-dealing. Whether and how these structural tensions between aggrandizement and self-dealing can be successfully resolved, or at least negotiated through contextual adjustments and expedients, is the subject of this Essay. Professor Vermeule examines a range of constitutional texts and precedents, including the Article I Ascertainment Clause, the Compensation Clauses of Articles II and III, the Twenty-Seventh Amendment, and the Supreme Court's recent decision in United States v. Hatter. He describes these rules as responses to the constitutional-design tradeoff between promoting institutional independence and minimizing institutional conflicts of interest, evaluates their costs and benefits in that light, and proposes doctrinal adjustments intended to improve the constitutional law of official compensation.
Date posted: November 22, 2003
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