With the Government shutdown now occurring, many are asking why the President, Members of Congress, and Federal Judges still getting paid? The answer lies in the Constitution.
The President.
Article 2, Section 1, Clause 7 provides, “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, and he shall not receive within that Period any other Emolument from the United States, or any of them.”
Because of this Clause, the President must be paid. His pay must be provided him at the times stated and in the amount required by law at the time he was elected. This Clause was put in place to prevent the President from pursuing actions in his official capacity that would allow him to personally benefit financially from taking such action. It also ensured the independence of the President by protecting him from any detrimental financial action taken against him by a hostile Congress because they disagreed with his policies. This Clause was put in place as a check and balance of power between Congress and the President.
Benjamin Franklin, during the Constitutional Convention proposed that the President receive no pay at all his continuance in office, but his proposal was rejected by the Convention out of fear that if the President received no compensation, only those with great wealth would ever accept to serve as President.
Federal Judges.
The Constitution also mandates Federal judges receive their pay. Article III, Section 1 states, “The Judges, both of the supreme and inferior Courts … shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their continuance in Office.”
Like the Presidential compensation clause, this provision was designed to ensure the independence of the judiciary. Congress was forbidden from withholding or decreasing a judge’s pay even if they strongly disagreed with his judicial opinions. Therefore, Congress must pay the Federal judges at their normal stated times and the full amount of their salary.
Originally, James Madison wanted the clause to read much the same as the clause regarding Presidential salary and provide that judges’ salaries could neither be increased nor decreased during their continuance in office. However, his proposal was rejected. The other members of the Constitutional Convention realized that unlike the President who served for a term of four years, Federal judges served for life (or during good behavior) and would be much more impacted by inflation over their lifetime than would a President serving only a four year period. Therefore, judges needed to have their salaries increased from time to time to offset the affects of inflation.
Congress.
When what has now become known as the Bill of Rights was originally introduced in Congress, it consisted of 12 proposed amendments, not just the 10 that became the Bill of Rights we have today. James Madison proposed what is now the 27th Amendment to the US Constitution and Congress at the time it approved the other 10 Amendments in the Bill of Rights, approved this one too. However, it took over 200 years before a sufficient number of States ratified this particular Amendment so that it could become part of the Constitution.
The 27th Amendment provides, “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.”
The purpose of this Amendment was to prevent corruption in Congress. At the time of the Constitutional Convention, it was hotly debated over whether the States should set and pay the salaries of their Senators and Representatives in Congress, or if the Senators and Representatives should be paid out of the Federal treasury. It was finally decided that they should be paid out of the Federal treasury as established by Federal law. Many understood however, that it was dangerous to allow Senators and Representatives to set their own pay. There was no check to keep corrupt politicians from voting themselves and immediate pay raise.
The 27th Amendment became that check. Although Congress was still vested with the authority to set the salary for its own members, any change in pay could not take effect until after the next election. If the people were upset with Congress for changing their own pay, the citizenry could exercise their power and vote their representatives out of office before they could benefit from the increased pay. But although they could not benefit from any change in pay until after the next election (assuming they were re-elected) the Amendment also protected them from a loss of pay during the period in which they were elected by mandating that their pay could not vary while serving their current term. Therefore, even if the Government shut down, Congress still had to be paid.
And there you have it. Now you know why the President, Federal judges, and Congress still get paid during a government shut down. But although they have to be paid, nothing says they have to keep their pay. Several Presidents have donated their Presidential salary to charitable causes. During this current shutdown, several Congressmen, both Democrat and Republican, have asked that their pay, during the period of the shutdown, be held or donated to a charitable cause.
In the end, it is up to the American citizenry to hold our elected officials accountable. Contact them and let them know your thoughts and concerns about the shutdown. If you don’t like what they are doing, mobilize now to vote them out of office. If you like the position your elected officials have taken, let them know of your support for them and get to work now to help them get re-elected once this is all over. It’s all up to you.
