Debunking Roger Parloff and Other Misguided Critics

The Ineligibility or Sinecure Clause (Article I, Section 6, Clause 2) states:
Here and elsewhere, the Constitution of 1788 distinguishes “appoint” from “elect.” Whether or not contemporaneous popular usage did that too is an entirely different question—just as legal usage sometimes differs from popular usage.
For a different point of view, see Roger Parloff, ‘What Justice Scalia Thought About Whether Presidents Are “Officers of the United States”,’ Lawfare (Jan. 24, 2024, 9:01 AM), <> If Parloff and others are correct, if appoint and elect are basically synonyms across constitutional provisions, then a strategic Congress could raise the President’s (or Vice President’s) salary, and if Congress did so, then a Senator with 2 or 4 years remaining on his/her term would be barred from being elected/appointed to the presidency and vice presidency. In other words, an incumbent President seeking re-election, working in tandem with a cooperative Congress, could bar all senators (with 2 or 4 years remaining on their term) from the minority party, by raising the President’s salary $1! And they say the Blackman/Tillman position has odd, unexpected, undesirable consequences? Moreover, this point is not new. It has been in the literature since circa 2009. See Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 107, 134–36 (2009).
Parloff might try to argue that the Sinecure Clause does not apply to the presidency, because the presidency is not a “Civil Office under Authority of the United States.” That would be odd. As we understand it, Parloff’s position is that the President is an “Officer of the United States” and the presidency is an “Office under the United States.” Why wouldn’t the presidency also be a “Civil Office under Authority of the United States”? And we have addressed at length why the President is not a military official. It would seem to follow that under Parloff’s position, the presidency would be considered an appointed position under the Sinecure Clause. As a result, all of these negative consequences inhere to his position.
In a recent Volokh Conspiracy post, we wrote: