An interlocking network of federal statutes fixes the
compensation of high-level federal officials, including federal
judges, and provides for annual cost-of-living adjustments in
salary determined in the same way as those for federal employees
generally. In four consecutive fiscal years (hereafter Years 1, 2,
3, and 4), Congress, with respect to these high-level officials,
enacted statutes to stop or reduce previously authorized
cost-of-living increases initially intended to be automatically
operative under that statutory scheme. In Years 2 and 3, the
statutes became law before the start of the fiscal year, and in
Years 1 and 4 became law on or after the first day of the fiscal
year. A number of United States District Court Judges (appellees)
filed class actions against the United States in District Court,
challenging the validity of the statutes under the Compensation
Clause of the Constitution, which provides that federal judges
shall receive compensation which "shall not be diminished during
their Continuance in Office." The District Court granted summary
judgments for appellees.
Held:
1. This Court has jurisdiction of the appeals under 28 U.S.C. §
1252, providing for appeals to this Court from judgments holding an
Act of Congress unconstitutional in any civil action to which the
United States is a party. And the District Court had jurisdiction
over the actions under 28 U.S.C. § 1346(a)(2), which confers on
district courts and the Court of Claims concurrent jurisdiction
over actions against the United States based on the Constitution
when the amount in controversy does not exceed $10,000, none of the
individual claims here having been alleged to have exceeded that
amount. Pp.
449 U. S.
210-211.
2. Title 28 U.S.C. § 455 -- which requires a federal judge to
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned or where he has a financial interest
in the subject matter in controversy or is a party to the
proceeding -- by reason of the Rule of
Page 449 U. S. 201
Necessity does not operate to disqualify all federal judges,
including the Justices of this Court, from deciding the issues
presented by these cases. Where, under the circumstances of these
cases, all Article III judges have an interest in the outcome, so
that it was not possible to assign a substitute district judge or
for the Chief Justice to remit the appeal, as he is authorized to
do by statute, to a division of the Court of Appeals with judges
who are not subject to the disqualification provisions of § 455,
the common law Rule of Necessity, under which a judge, even though
he has an interest in the case, has a duty to hear and decide the
case if it cannot otherwise be heard, prevails over the
disqualification standards of § 455. Far from promoting § 455's
purpose of reaching disqualification of an individual judge when
there is another to whom the case may be assigned, failure to apply
the Rule of Necessity in these cases would have a contrary effect
by denying some litigants their right to a forum. And the public
might be denied resolution of the crucial matter involved if first
the District Judge and now all the Justices of this Court were to
ignore the mandate of the Rule of Necessity and decline to answer
the questions presented . Pp.
449 U. S.
211-217.
3. The statutes in question in Years 1 and 4, but not in Years 2
and 3, violated the Compensation Clause. Pp.
449 U. S.
217-230.
(a) In each of the four years in question, Congress intended in
effect to repeal or postpone previously authorized salary increases
for federal judges, not simply to consign such increases to the
fiscal limbo of an account due but not payable. Pp.
449 U. S.
221-224.
(b) Since the statute applying to Year 1 became law on the first
day of the fiscal year, by which time the salary increases already
had taken effect, it purported to repeal a salary increase already
in force, and thus "diminished" the compensation of federal judges.
That the statute included in the salary "freeze" other federal
officials who are not protected by the Compensation Clause did not
insulate a direct diminution in judges' salaries from the clear
mandate of that Clause. Pp.
449 U. S.
224-226.
(c) But the statutes applying to Years 2 and 3 became law before
the scheduled salary increases for federal judges had taken effect,
i.e., before they had become a part of the compensation
due Article III judges, and hence in no sense diminished the
compensation such judges were receiving. Pp.
449 U. S.
226-229.
(d) Even though the statute applying to Year 4 referred only to
"executive employees, which includes Members of Congress," and did
not expressly mention judges, it appears that Congress intended to
include Article III judges. Accordingly, where such statute,
similarly to the statute applying to Year 1, purported to revoke an
increase in
Page 449 U. S. 202
judges' compensation after the statutes granting the increase
had taken effect, it violated the Compensation Clause. Pp.
449 U. S.
229-230.
No. 70-983,
478 F.
Supp. 621, and No. 79-1689, affirmed in part, reversed in part,
and remanded.
BURGER, C.J., delivered the opinion of the Court, in which all
other Members joined, except BLACKMUN, J., who took no part in the
decision of the cases.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
These appeals present the questions whether under the
Compensation Clause, Art. III, § 1, Congress may repeal or modify a
statutorily defined formula for annual cost-of-living increases in
the compensation of federal judges, and, if so, whether it must act
before the particular increases take effect.
I
Congress has enacted an interlocking network of statutes to fix
the compensation of high-level officials in the Executive,
Legislative, and Judicial Branches, including federal judges. It
provides for quadrennial review of overall salary levels and annual
cost-of-living adjustments determined in the same fashion as those
for federal employees generally. In four consecutive fiscal years,
Congress, with respect to these high-level
Page 449 U. S. 203
Executive Branch, Legislative, and Judicial salaries, enacted
statutes to stop or to reduce previously authorized cost-of-living
increases initially intended to be automatically operative under
that statutory scheme, once the Executive had determined the
amount. In two of these years, the legislation was signed by the
President and became law before the start of the fiscal year; in
the other two years, on or after the first day of the fiscal
year.
A
The salaries of high-level Executive, Legislative, and Judicial
officials are set under the Postal Revenue and Federal Salary Act
of 1967, 81 Stat. 642, as amended, 2 U.S.C. §§ 351-361 (1976 ed.
and Supp. III). The Salary Act provides for a quadrennial review,
starting in 1969, of these officials' compensation. A Commission on
Executive, Legislative, and Judicial Salaries periodically examines
the salary levels for these positions in relation to one another
and to the General Schedule (GS), the matrix of grades and steps
that determines the salaries of most federal employees. Its
recommendations are submitted to the President, who in turn submits
that report with his recommendations to Congress in the next
budget. Each House of Congress must vote on the President's
proposal within 60 days. If both Houses approve, the adjustment
takes effect at the start of the first pay period beginning 30 days
thereafter. [
Footnote 1]
In 1975, Congress adopted the Executive Salary Cost-of-Living
Adjustment Act, Pub.L. 94-82, 89 Stat. 419. The Adjustment Act
subjects the salaries covered by the Salary Act to the same annual
adjustment made in the General Schedule under the Federal Pay
Comparability Act of 1970, 5 U.S.C. §§ 5305-5306. The Comparability
Act requires that, each year, the President designate an agent to
compare federal salaries to data on private-sector salaries
compiled by
Page 449 U. S. 204
the Bureau of Labor Statistics. The agent must undertake certain
steps in his investigation and, ultimately, submit a report to the
President recommending adjustments as deemed appropriate to bring
federal employees' salaries in line with prevailing rates in the
private sector. A separate Advisory Committee on Federal Pay then
reviews that report and makes its own independent recommendation.
Thereafter, the President issues an order adjusting the salaries of
federal employees and submits a report to Congress listing the
overall percentage of the adjustment and including the reports and
recommendations submitted to him on the subject. If the President
believes that economic conditions or conditions of national
emergency make the planned adjustment inappropriate, he may submit
to Congress, before September 1, an alternative plan for adjusting
federal employees' salaries. This alternative plan controls unless
within 30 days of continuous legislative session either House of
Congress adopts a resolution disapproving of the President's
proposed plan. If one House disapproves, the agent's recommendation
governs. The increases take effect with the start of the first pay
period starting on or after the beginning of the federal fiscal
year on October 1.
This complex web of base salaries adjusted annually for civil
service employees and again quadrennially for higher-rank positions
has led to the following statutory definition of a United States
district judge's compensation:
"Each judge of a district court of the United States shall
receive a salary at an annual rate determined under section 225 of
the Federal Salary Act of 1967 (2 U.S.C. 351-361), as adjusted by
section 461 of this title."
28 U.S.C. § 135. Similarly phrased statutes apply to all other
Article III judges. [
Footnote
2] Title 28 U.S.C. § 461, in turn, provides that the annual
Page 449 U. S. 205
GS adjustment, rounded to the nearest multiple of $100, shall
apply to salaries subject to that section, effective at the start
of the next pay period. Compensation of judges is set at an annual
figure and paid monthly, with each pay period coinciding with the
calendar month.
See 5 U.S.C. § 5505. Accordingly, any
annual change in salary under the Adjustment Act takes effect at
the beginning of October, the start of the fiscal year.
B
In October, 1975, GS salaries were increased by an average of 5%
under the terms of the Comparability Act. Federal judges and the
other officials covered by the Adjustment Act received similar
increases. In each of the following four years, however, Congress
adopted a statute that altered the application of the Adjustment
Act for the officials of the three branches subject to it. To avoid
the confusion generated by a fiscal year's having a number
different from the calendar year in which it begins, we refer to
these as Years 1, 2, 3, and 4. We turn now to the specific actions
taken for each of the four years in question.
Year 1
In October, 1976, GS salaries were increased by an average of
4.8% under the procedures of the Comparability Act outlined
earlier. On October 1, the first day of the new fiscal year and the
first day of the relevant pay period, the President signed the
Legislative Branch Appropriation Act, 1977, Pub.L. 94-440, 90 Stat.
1439. Title II of that statute provided:
"[N]one of the funds contained in this Act shall be used to
increase salaries of Members of the House of Representatives. . . .
No part of the funds appropriated in
Page 449 U. S. 206
this Act or any other Act shall be used to pay the salary of an
individual in a position or office referred to in section 225(f) of
the Federal Salary Act of 1967, as amended (2 U.S.C. 356),
including a Delegate to the House of Representatives, at a rate
which exceeds the salary rate in effect on September 30, 1976, for
such position or office. . . ."
By virtue of the reference to the Salary Act, this statute
applied to federal judges; its import, therefore, was to prohibit
paying the 4.8% raise on October 1, 1976, under the Adjustment Act
to federal judges, as well as Members of Congress and high-level
officials in the Executive Branch.
In March, 1977, Members of Congress, federal judges, and
high-ranking employees in the Executive Branch received raises
pursuant to the quadrennial review under the Salary Act. The salary
of a United States district judge, for example, increased to
$54,500; circuit judges and special appellate judges, to $57,500;
Associate Justices of the Supreme Court, to $72,000. 42 Fed.Reg.
10297 (1977). [
Footnote 3]
Year 2
In October, 1977, GS salaries, which generally are not subject
to the quadrennial review under the Salary Act, were increased an
average of 7.1% under the Comparability Act. On July 11, 1977, the
President signed Pub.L. 95 66, 91 Stat. 270, which provided:
"[T]he first adjustment which, but for this Act, would be made
after the date of enactment of this Act under the following
provisions of law in the salary or rate of pay
Page 449 U. S. 207
of positions or individuals to which such provisions apply [the
7.1% in October, 1977], shall not take effect:"
"
* * * *"
"(3) section 461 of title 28, United States Code, relating to
comparability adjustments in the salary and rate of pay of
justices, judges, commissioners, and referees . . . ."
Parallel subdivisions applied to the other officials under the
Salary Act. According to the House Report on this measure, an
Adjustment Act increase would be inappropriate following the
Comparability Act increase earlier in the same calendar year.
H.R.Rep. No. 9558, p. 2 (1977). [
Footnote 4] The effect of this statute was to nullify the
contemplated 7.1% increase for these high-level executive
employees, Members of Congress, and federal judges.
Year 5
For the fiscal year beginning October 1, 1978, the President
approved the recommendation to increase GS salaries an average of
5.5%. On September 30, 1978, the final day of the preceding fiscal
year, however, the President signed the Legislative Branch
Appropriation Act, 1979, Pub.L. 95-391, 92 Stat. 763. Section
304(a) of that Act stated:
"No part of the funds appropriated for the fiscal year ending
September 30, 1979, by this Act or any other Act may be used to pay
the salary or pay of any individual in any office or position in
the legislative, executive, or judicial branch, or in the
government of the District of Columbia, at a rate which exceeds the
rate (or maximum rate, if higher) of salary or basic pay payable
for such office or position for September 30, 1978. . . . "
Page 449 U. S. 208
The effect of this provision was to prohibit paying the 5.5%
increase authorized by the Adjustment Act for the fiscal year
beginning October 1, 1978.
Year 4
For the fiscal year beginning October 1, 1979, the President's
statutory agent transmitted a recommendation for an average
increase of 10.41%. However, on August 31, the President invoked
his power under the Comparability Act to alter this rate; he
reduced the proposed increase to 7% from the 10.41% recommended.
These increases, the Government concedes, took effect on October 1,
1979. Moreover, because the September 30, 1978, statute (Year 3)
prohibited paying the 5.5% increase only during fiscal year 1979,
that increase took effect as well; along with the 7% adjustment,
this brought the total to 12.9%. [
Footnote 5] Nevertheless, the Government now contends that
this increase was in effect for only 11 days, since, on October 12,
the President signed Pub.L. 986, 93 Stat. 656. Section 101(c) of
this statute stated, in relevant part:
"For fiscal year 1980, funds available for payment to executive
employees, which includes Members of Congress, who under existing
law are entitled to approximately 12.9 percent increase in pay,
shall not be used to pay any such employee or elected or appointed
official any sum in excess of 5.5 percent increase in existing pay
and such sum if accepted shall be in lieu of the 12.9 percent due
for such fiscal year."
None of the appellees have exercised the statutory option to
accept the 5.5% increase pursuant to the final clause of this
statute; in terms, that statute provides such acceptance of the
5.5% operates as a waiver of all claims to rates higher than
Page 449 U. S. 209
the 5.5%. The Government concedes the 5.5% increase has
continued in effect.
C
On February 7, 1978, 13 United States District Judges filed an
action (No. 79-983 in this Court) in the District Court for the
Northern District of Illinois. The complaint, which named the
United States as defendant, challenged the validity of the statutes
in Years 1 and 2 under the Compensation Clause, U.S.Const., Art.
III, § 1. [
Footnote 6] The
plaintiff judges were certified as representatives of two classes
of Article III judges, the classes defined with reference to Years
1 and 2. [
Footnote 7] The
Government, while not opposing certification of the classes,
defended the validity of both statutes.
In an opinion filed August 29, 1979, the District Court granted
summary judgment for the plaintiffs, appellees here.
478 F.
Supp. 621. A corresponding judgment order was entered September
24. On appeal by the Government, we postponed decision on
jurisdiction to the hearing on the merits and directed the parties
to address the effect of 28 U.S.C. § 455, if any, on the
jurisdiction of the District Court and this Court. 444 U.S. 1068
(1980).
No. 79-1689 comes to us from a similar complaint filed in the
United States District Court for the Northern District of
Page 449 U. S. 210
Illinois on October 19, 1979, after the District Court had
entered judgment in No. 79-983. At issue this time were the
statutes in Years 3 and 4. The same 13 judges, joined by one other,
again sought to represent two classes of Article III judges defined
by the years. [
Footnote 8] The
United States is defendant. The case was referred to the same
member of the District Court who had presided over the proceedings
in No. 79-983.
On January 31, 1980, the District Court entered an order
certifying the classes and granting summary judgment for the
plaintiffs, appellees in No. 79-1689. Based on its decision in No.
79-983, the court held that the statute in Year 3 violated the
Compensation Clause. The court noted with respect to Year 4 that
the relevant statute referred only to "executive employees." It
then held that, while it was doubtful Congress intended the statute
to apply to judges, the statute would be unconstitutional if
Congress did so intend. In either case, the Adjustment Act increase
for Year 4 took effect. Judgment for appellees was formally entered
February 12. On the Government's appeal to this Court, we postponed
consideration of jurisdiction to the merits and consolidated this
case with No. 79-983 for briefing and oral argument. 447 U.S. 919
(1980).
II
A
Jurisdiction
Although it is clear that the District Judge and all Justices of
this Court have an interest in the outcome of these cases, there is
no doubt whatever as to this Court's jurisdiction
Page 449 U. S. 211
under 28 U.S.C. § 1252 [
Footnote
9] or that of the District Court under 28 U.S.C. § 1346(a)(2)
(1976 ed., Supp. III). [
Footnote
10] Section 455 of Title 28 [
Footnote 11] neither expressly nor by implication
purports to deal with jurisdiction. On its face, § 455 provides for
disqualification of individual judges under specified
circumstances; it does not affect the jurisdiction of a court.
Nothing in the text or the history of § 455 suggests that Congress
intended, by that section, to amend the vast array of statutes
conferring jurisdiction over certain matters on various federal
courts.
B
Disqalification
Jurisdiction being clear, our next inquiry is whether 28 U.S.C.
§ 455 or traditional judicial canons [
Footnote 12] operate to disqualify
Page 449 U. S. 212
all United States judges, including the Justices of this Court,
from deciding these issues. This threshold question reaches us with
both the Government and the appellees in full agreement that § 455
did not require the District Judge, and does not now require each
Justice of this Court, to disqualify himself. Rather, they agree
the ancient Rule of Necessity prevails over the disqualification
standards of § 455. Notwithstanding this concurrence of views
resulting from the Government's concession, the sensitivity of the
issues leads us to address the applicability of § 455 with the same
degree of care and attention we would employ if the Government
asserted that the District Court lacked jurisdiction or that § 455
mandates disqualification of all judges and Justices without
exception.
In federal courts generally, when an individual judge is
disqualified from a particular case by reason of § 455, the
disqualified judge simply steps aside and allows the normal
administrative processes of the court to assign the case to another
judge not disqualified. In the cases now before us, however, all
Article III judges have an interest in the outcome; assignment of a
substitute District Judge was not possible. And in this Court, when
one or more Justices are recused but a statutory quorum of six
Justices eligible to act remains available,
see 28 U.S.C.
§ 1, the Court may continue to hear the case. Even if all Justices
are disqualified in a particular case under § 455, 28 U.S.C. § 2109
authorizes the Chief Justice to remit a direct appeal to the Court
of Appeals for final decision by judges not so disqualified.
[
Footnote 13]
Page 449 U. S. 213
However, in the highly unusual setting of these cases, even with
the authority to assign other federal judges to sit temporarily
under 28 U.S.C. §§ 291-296 (1976 ed. and Supp. III), it is not
possible to convene a division of the Court of Appeals with judges
who are not subject to the disqualification provisions of § 455. It
was precisely considerations of this kind that gave rise to the
Rule of Necessity, a well-settled principle at common law that, as
Pollack put it,
"although a judge had better not, if it can be avoided, take
part in the decision of a case in which he has any personal
interest, yet he not only may, but must, do so if the case cannot
be heard otherwise."
F. Pollack, A First Book of Jurisprudence 270 (6th ed.1929).
C
Rule of Necessity
The Rule of Necessity had its genesis at least five and a half
centuries ago. Its earliest recorded invocation was in 1430, when
it was held that the Chancellor of Oxford could act as judge of a
case in which he was a party when there was no provision for
appointment of another judge. Y. B. Hil.
Page 449 U. S. 214
8 Hen. VI, f.19, pl. 6. [
Footnote 14] Early cases in this country confirmed the
vitality of the Rule. [
Footnote
15]
The Rule of Necessity has been consistently applied in this
country in both state and federal courts. In
State ex rel.
Mitchell v. Sage Stores Co., 157 Kan. 622, 143 P.2d 652
(1943), the Supreme Court of Kansas observed:
"[I]t is well established that actual disqualification of a
member of a court of last resort will not excuse such member from
performing his official duty if failure to do so would result in a
denial of a litigant's constitutional right to have a question,
properly presented to such court, adjudicated."
Id. at 629, 143 P.2d at 656. Similarly, the Supreme
Court of Pennsylvania held:
"The true rule unquestionably is that wherever it becomes
necessary for a judge to sit even where he has an interest -- where
no provision is made for calling another in, or where no one else
can take his place -- it is his duty to hear and decide, however
disagreeable it may be."
Philadelphia v. Fox, 64 Pa. 169, 185 (1870). Other
state [
Footnote 16] and
federal [
Footnote 17] courts
also have recognized the Rule.
Page 449 U. S. 215
The concept of the absolute duty of judges to hear and decide
cases within their jurisdiction revealed in Pollack,
supra, and
Philadelphia v. Fox, supra, is
reflected in decisions of this Court. Our earlier cass dealing with
the Compensation Clause did not directly involve the compensation
of Justices or name them as parties, and no express reference to
the Rule is found.
See, e.g., O'Malley v. Woodrough,
307 U. S. 277
(1939);
O'Donoghue v. United States, 289 U.
S. 516 (1933);
Evans v. Glore, 253 U.
S. 245 (1920). In
Evans, however, an action
brought by an individual judge in his own behalf, the Court, by
clear implication, dealt with the Rule:
"Because of the individual relation of the members of this court
to the question . . . we cannot but regret that its solution falls
to us. . . . But jurisdiction of the present case cannot be
declined or renounced. The plaintiff was entitled by law to invoke
our decision on the question as respects his own compensation, in
which no other judge can have any direct personal interest; and
there was no other appellate tribunal to which under the law he
could go."
Id. at
253 U. S.
247-248. [
Footnote
18]
Page 449 U. S. 216
It would appear, therefore, that this Court so took for granted
the continuing validity of the Rule of Necessity that no express
reference to it or extended discussion of it was needed. [
Footnote 19]
D
Limited Purpose of Section 455
The objective of § 455 was to deal with the reality of a
positive disqualification by reason of an interest or the
appearance of possible bias. The House and Senate Reports on § 455
reflect a constant assumption that, upon disqualification of a
particular judge, another would be assigned to the case. For
example:
"[I]f there is [any] reasonable factual basis for doubting the
judge's impartiality, he should disqualify himself
and let
another judge preside over the case."
S.Rep. No. 9319, p. 5 (1973) (emphasis added); H.R.Rep. No.
93-1453, p. 5 (1973) (emphasis added) . The Reports of the two
Houses continued:
"The statutes contain ample authority for chief judges
to
assign other judges to replace either a circuit or district
court judge who become disqualified [under § 455]."
S.Rep. No. 93-419, supra
at 7 (emphasis added); H.R.Rep. No.
93-1453, supra at 7 (emphasis added).
Page 449 U. S. 217
The congressional purpose so clearly expressed in the Reports
gives no hint of altering the ancient Rule of Necessity, a doctrine
that had not been questioned under prior judicial disqualification
statutes. [
Footnote 20] The
declared purpose of § 455 is to guarantee litigants a fair forum in
which they can pursue their claims. Far from promoting this
purpose, failure to apply the Rule of Necessity would have a
contrary effect, for without the Rule, some litigants would be
denied their right to a forum. The availability of a forum becomes
especially important in these cases. As this Court has observed
elsewhere, the Compensation Clause is designed to benefit not the
judges as individuals, but the public interest in a competent and
independent judiciary.
Evans v. Gore, supra at
253 U. S. 253.
The public might be denied resolution of this crucial matter if
first the District Judge, and now all the Justices of this Court,
were to ignore the mandate of the Rule of Necessity and decline to
answer the questions presented. On balance, the public interest
would not be served by requiring disqualification under § 455.
We therefore hold that § 455 was not intended by Congress to
alter the time-honored Rule of Necessity. And we would not casually
infer that the Legislative and Executive Branches sought by the
enactment of § 455 to foreclose federal courts from exercising "the
province and duty of the judicial department to say what the law
is."
Marbury v.
Madison, 1 Cranch 137,
5 U. S. 177
(1803).
III
The Compensation Clause
The Compensation Clause has its roots in the longstanding
Anglo-American tradition of an independent Judiciary. A
Page 449 U. S. 218
Judiciary free from control by the Executive and the Legislature
is essential if there is a right to have claims decided by judges
who are free from potential domination by other branches of
government. Our Constitution promotes that independence
specifically by providing:
"The Judges, both of the supreme and inferior Courts, shall hold
their Offices during good Behaviour, and shall, at stated Times,
receive for their Services, a Compensation, which shall not be
diminished during their Continuance in Office."
Art. III, § 1. Hamilton, in The Federalist No. 79, p. 491 (1818)
(emphasis deleted), emphasized the importance of protecting
judicial compensation:
"In the general course of human nature, a power over a man's
subsistence amounts to a power over his will."
The relationship of judges' compensation to their independence
was by no means a new idea initiated by the authors of the
Constitution. The Act of Settlement in 1701, designed to correct
abuses prevalent under the reign of the Stuart Kings, includes a
provision that, upon the accession of the successor to then
Princess Anne,
"Judges Commissions be made
Quamdiu se bene gesserint
[during good behavior], and their Salaries ascertained and
established. . . ."
12 & 13 Will. III, ch. 2, § III, cl. 7 (1701). This English
statute is the earliest legislative acknowledgment that control
over the tenure and compensation of judges is incompatible with a
truly independent judiciary, free of improper influence from other
forces within government. Later, Parliament passed, and the King
assented to, a statute implementing the Act of Settlement providing
that a judge's salary would not be decreased "so long as the
Patents and Commissions of them, or any of them respectively,
shall
Page 449 U. S. 219
continue and remain in force." 1 Geo. III, ch. 23, § III (1760).
These two statutes were designed "to maintain both the dignity and
independence of the judges." 1 W. Blackstone, Commentaries
*267.
Originally, these same protections applied to colonial judges as
well. In 1761, however, the King converted the tenure of colonial
judges to service at his pleasure. [
Footnote 21] The interference this change brought to the
administration of justice in the Colonies soon became one of the
major objections voiced against the Crown. Indeed, the Declaration
of Independence, in listing the grievances against the King,
complained:
"He has made Judges dependent on his Will alone, for the tenure
of their offices, and the amount and payment of their
salaries."
Independence won, the colonists did not forget the reasons that
caused them to separate from the Mother Country. Thus, when the
Framers met in Philadelphia in 1787 to draft our organic law, they
made certain that, in the judicial articles, both the tenure and
the compensation of judges would be protected from one of the evils
that had brought on the Revolution and separation.
Madison's notes of the Constitutional Convention reveal that the
draftsmen first reached a tentative arrangement whereby the
Congress could neither increase nor decrease the compensation of
judges. Later, Gouverneur Morris succeeded in striking the
prohibition on increases; with others, he believed the Congress
should be at liberty to raise salaries to meet such contingencies
as inflation, a phenomenon known in that day as it is in ours.
Madison opposed the change on the ground judges might tend to defer
unduly to the Congress when that body was considering pay
increases.
Page 449 U. S. 220
The concern for the ravages of inflation is revealed in
Madison's comment:
"The variations in the value of money may be guarded against by
taking for a standard wheat or some other thing of permanent
value."
2 M. Farrand, The Records of the Federal Convention of 1787, p.
45 (1911). Morris criticized the proposal for overlooking changes
in the state of the economy; the value of wheat may change, he
said, and leave the judges undercompensated. The Convention finally
adopted Morris' motion to allow increases by the Congress, thereby
accepting a limited risk of external influence in order to
accommodate the need to raise judges' salaries when times changed.
[
Footnote 22] As Hamilton
later explained:
"It will readily be understood that the fluctuations in the
value of money, and in the state of society, rendered a fixed rate
of compensation [of judges] in the Constitution inadmissible. What
might be extravagant today might in half a century become penurious
and inadequate. It was therefore necessary to leave it to the
discretion of the legislature to vary its provisions in conformity
to the variations in circumstances, yet under such restrictions as
to put it out of the power of that body to change the condition of
the individual for the worse."
The Federalist No. 79, pp. 491-492 (1818).
This Court has recognized that the Compensation Clause
Page 449 U. S. 221
also serves another, related purpose. As well as promoting
judicial independence, it ensures a prospective judge that, in
abandoning private practice -- more often than not more lucrative
than the bench -- the compensation of the new post will not
diminish. Beyond doubt, such assurance has served to attract able
lawyers to the bench, and thereby enhances the quality of justice.
Evans v. Gore, 253 U.S. at
253 U. S. 253;
1 J. Kent, Commentaries on American Law 276 (1826).
IV
The four statutes now before us present an issue never before
addressed by this Court: when, if ever, does the Compensation
Clause prohibit the Congress from repealing salary increases that
otherwise take effect automatically pursuant to a formula
previously enacted? We must decide when a salary increase
authorized by Congress under such a formula "vests" --
i.e., becomes irreversible under the Compensation Clause.
Is the protection of the Clause first invoked when the formula is
enacted or when increases take effect
A
Appellees argue that we need not reach this constitutional
question. They contend that Congress intended these four statutes
do no more than halt funding for the salary increases under the
Adjustment Act. If, as appellees contend, the statutes are
appropriations measures that do not alter substantive law, the
increases in all four years nevertheless are now in effect and the
Government is obliged to pay them; it has simply to authorize that
payment. Accordingly, appellees submit, these congressional actions
violate the Compensation Clause regardless of whether Congress
could have rescinded increases previously passed.
As a general rule, "repeals by implication are not favored."
Posadas v. National City Bank, 296 U.
S. 497,
296 U. S. 503
(1936).
See also TVA v. Hill, 437 U.
S. 153,
437 U. S. 189
(1978), and
Morton v. Mancari, 417 U.
S. 535,
417 U. S. 549
(1974). This rule applies
Page 449 U. S. 222
with especial.force when the provision advanced as the repealing
measure was enacted in an appropriations bill.
TVA v. Hill,
supra at
437 U. S. 190.
Indeed, the rules of both Houses limit the ability to change
substantive law through appropriations measures.
See
Senate Standing Rule XVI(4); House of Representatives Rule XXI(2).
Nevertheless, when Congress desires to suspend or repeal a statute
in force, "[t]here can be no doubt that . . . it could accomplish
its purpose by an amendment to an appropriation bill, or
otherwise."
United States v. Dickerson, 310 U.
S. 554,
310 U. S. 555
(1940). "The whole question depends on the intention of Congress as
expressed in the statutes."
United States v. Mitchell,
109 U. S. 146,
109 U. S. 150
(1883).
See also Belknap v. United States, 150 U.
S. 588,
150 U. S. 594
(1893). [
Footnote 23]
In the cases now before us, we conclude that, in each of the
four years in question, Congress intended to repeal or postpone
previously authorized increases. In the statute for Year 2,
Congress expressly stated that the Adjustment Act increase due the
following October "shall not take effect." Pub.L. 95-66, 91 Stat.
270. Thus, the plain words of the statute reveal an intention to
repeal the Adjustment Act insofar as it would increase salaries in
October, 1977. This reading finds support in the House Report on
the bill, which repeatedly uses language such as "eliminate the
expected October 1977 comparability adjustment."
See
H.R.Rep. No. 95-458, pp. 1, 3 (1977). The floor remarks of Senators
and Representatives confirm that this construction was generally
understood. [
Footnote
24]
Page 449 U. S. 223
The statutes in Years 1, 3, and 4, although phrased in terms of
limiting funds,
see supra at
449 U. S.
205-206,
449 U. S. 207,
449 U. S. 208,
nevertheless were intended by Congress to block the increases the
Adjustment Act otherwise would generate. Representative Shipley
introduced the rider in relation to Year 1 to "preven[t] the
automatic cost-of-living pay increase. . . ." 122 Cong.Rec. 28872
(1976). [
Footnote 25] Floor
remarks in both Houses reflected this view. [
Footnote 26] In Year 3, the House Report
characterized the statute as a "change [in] the application of
existing law," H.R.Rep. No. 95-1254, p. 31 (1978), and described
its effect as creating a one-year "pay freeze,"
id. at 35.
The Senate Report
Page 449 U. S. 224
stated that the statute would "continu[e] . . . the so called
cap'" on salaries for the next fiscal year. S.Rep. No. 91024,
p. 50 (1978). Floor debate once again expressed agreement with this
construction. [Footnote 27]
The House Report on the statute for Year 4 characterized it as
"reduc[ing] Federal executive pay increases from the mandatory
entitlement of 12.9 per centum to 5.5 per centum." H.R.Rep. No.
96-500, p. 7 (1979). The Report referred to the bill as a change in
existing law. See id. at 3. Later the Conference Report
stated that the statute "restricts Cost-of-Living increases to 5.5
percent" for the fiscal year just begun. H.R.Conf. Rep. No. 96-513,
p. 3 (1979). The floor debates also confirm this understanding.
[Footnote 28]
These passages indicate clearly that Congress intended to
rescind these raises entirely, not simply to consign them to the
fiscal limbo of an account due but not payable. The clear intent of
Congress in each year was to stop for that year the application of
the Adjustment Act. The issue thus resolves itself into whether
Congress could do so without violating the Compensation Clause.
B
Year 1
The statute applying to Year 1 was signed by the President
during the business day of October 1, 1976. By that time, the 4.8%
increase under the Adjustment Act already had
Page 449 U. S. 225
taken effect, since it was operative with the start of the month
-- and the new fiscal year -- at the beginning of the day. The
statute became law only upon the President's signing it on October
l; it therefore purported to repeal a salary increase already in
force. Thus it "diminished" the compensation of federal judges.
[
Footnote 29]
Page 449 U. S. 226
The Government contends that Congress could reduce compensation
as long as it did not "discriminate" against judges, as such,
during the process. That the "freeze" applied to various officials
in the Legislative and the Executive Branches, as well as judges,
does not save the statute, however. This is quite different from
the situation in
O'Malley v. Woodrough, 307 U.
S. 277 (1939). There, the Court held that the
Compensation Clause was not offended by an income tax levied on
Article III judges as well as on all other taxpayers; there was no
discrimination against the plaintiff judge. Federal judges, like
all citizens, must share "the material burden of the government. .
. ."
Id. at
307 U. S. 282.
The inclusion in the freeze of other officials who are not
protected by the Compensation Clause does not insulate a direct
diminution in judges' salaries from the clear mandate of that
Clause; the Constitution makes no exceptions for
"nondiscriminatory" reductions. [
Footnote 30] Accordingly, we hold that the statute with
respect to Year 1, as applied to compensation of members of the
certified class, violates the Compensation Clause of Art. III.
Year 2
Unlike the statute for Year 1, the statute for Year 2 was signed
by the President before October 1, when the 7.1% raise under the
Comparability Act was due to take effect. Year 2 thus confronts us
squarely with the question of whether Congress may, before the
effective date of a salary increase, rescind such an increase
scheduled to take effect at a later date. The District Court held
that, by including an annual cost-of-living adjustment in the
statutory definitions of the salaries of Article III judges,
see supra at
449 U. S. 204,
and n. 2, Congress made the annual adjustment, from that moment
on,
Page 449 U. S. 227
a part of judges' compensation for constitutional purposes.
Subsequent action reducing those adjustments "diminishes"
compensation within the meaning of the Compensation Clause. Relying
on
Evans v. Gore, 253 U.S. at
253 U. S. 254,
the District Court held that such action reduces the amount "a
judge . . . has been promised," and all amounts thus promised fall
within the protection of the Clause.
We are unable to agree with the District Court's analysis and
result. Our discussion of the Framers' debates over the
Compensation Clause,
supra at
449 U. S.
219-220, led to a conclusion that the Compensation
Clause does not erect an absolute ban on all legislation that
conceivably could have an adverse effect on compensation of judges.
[
Footnote 31] Rather, that
provision embodies a clear rule prohibiting decreases but allowing
increases, a practical balancing by the Framers of the need to
increase compensation to meet economic changes, such as substantial
inflation, against the need for judges to be free from undue
congressional influence. The Constitution delegated to Congress the
discretion to fix salaries and of necessity placed faith in the
integrity and sound judgment of the elected representatives to
enact increases when changing conditions demand.
Congress enacted the Adjustment Act based on this delegated
power to fix and, periodically, increase judicial compensation. It
did not thereby alter the compensation of judges; it modified only
the
formula for determining that compensation. Later,
Congress decided to abandon the formula
Page 449 U. S. 228
as to the particular years in question. For Year 2, as opposed
to Year 1, the statute was passed before the Adjustment Act
increases had taken effect -- before they had become a part of the
compensation due Article III judges. Thus, the departure from the
Adjustment Act policy in no sense diminished the compensation
Article III judges were receiving; it refused only to apply a
previously enacted formula. [
Footnote 32] A paramount -- indeed, an indispensable --
ingredient of the concept of powers delegated to coequal branches
is that each branch must recognize and respect the limits on its
own authority and the boundaries of the authority delegated to the
other branches. To say that the Congress could not alter a method
of calculating salaries before it was executed would mean the
Judicial Branch could command Congress to carry out an announced
future intent as to a decision the Constitution vests exclusively
in the Congress. [
Footnote
33] We therefore conclude
Page 449 U. S. 229
that a salary increase "vests" for purposes of the Compensation
Clause only when it takes effect as part of the compensation due
and payable to Article III judges. With regard to Year 2, we hold
that the Compensation Clause did not prohibit Congress from
repealing the planned but not yet effective cost-of-living
adjustment of October 1, 1977, when it did so before October 1, the
time it first was scheduled to become part of judges' compensation.
The statute in Year 2 thus represents a constitutionally valid
exercise of legislative authority.
Year 3
For our purposes, the legal issues presented by the statute in
Year 3 are indistinguishable from those in Year 2. Each statute
eliminated -- before October 1 -- the Adjustment Act salary
increases contemplated but not yet implemented. Each statute was
passed and signed by the President before the Adjustment Act
increases took effect, in; the case of Year 3, on September 30. For
the reasons set forth in our discussion of the issues for Year 2,
we hold that the statute in Year 3 did not violate the Compensation
Clause.
Year 4
Before reaching the constitutional issues implicated in Year 4,
we must resolve a problem of statutory construction. On its face,
the statute in Year 4 applies in terms to "executive employees,
which includes Members of Congress."
See supra at
449 U. S. 208.
It does not expressly mention judges. Appellees contend that, even
if Congress constitutionally could freeze the salaries of Article
III judges, it did not do so in this statute.
We are satisfied that Congress' use of the phrase "executive
employees," in context, was intended to include Article III judges.
The full title of the Adjustment Act is the Executive Salary
Cost-of-Living Adjustment Act, but it is clear that it was intended
to apply to officials in the Legislative and the
Page 449 U. S. 230
Judicial Branches as well. [
Footnote 34] The title does not control over the terms of
the statute. The statutes in the three preceding years undeniably
applied to judges, and we can discern no indication that the
Congress chose to single them out for an exemption when it was
including Executive and Legislative officials. Most important, both
the Conference Report and the Chairman of the House Appropriations
Committee, speaking on the floor, made explicit what already was
implicit: the limiting statute would apply to judges as well.
See H.R.Conf.Rep. No. 96-513, p. 3 (1979); 125 Cong.Rec.
27530, 27532 (1979) (remarks of Rep. Whitten). [
Footnote 35]
Having concluded that the statute in Year 4 was intended to
apply to judges as well as other high-level federal officials, we
are confronted with a situation similar to that in Year 1. Here
again, the statute purported to revoke an increase in judges'
compensation
after those statutes had taken effect. For
the reasons governing the statute as to Year 1, we hold that the
statute revoking the increase for Year 4 violated the Compensation
Clause insofar as it applied to members of the certified class.
V
The District Court has not yet calculated the precise dollar
amounts involved in Years 1 and 4, the years in which we hold the
statutes violated the Compensation Clause. Further proceedings are
required to resolve these questions. Accordingly, the judgment of
the District Court in No. 79-983
Page 449 U. S. 231
is affirmed in part and reversed in part, the judgment in No.
79-1689 is affirmed in part and reversed in part, and the cases are
remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE BLACKMUN took no part in the decision of these
cases.
* Together with No. 79-1689,
United States v. Will et
al., also on appeal from the same court.
[
Footnote 1]
The Salary Act, as amended, does not expressly prescribe what
occurs if either House of Congress disapproves.
See 2
U.S.C. § 359 (1976 ed., Supp. III).
[
Footnote 2]
See 28 U.S.C. § 5 (the Chief Justice and each Associate
Justice of the Supreme Court); 28 U.S.C. § 44(d) (circuit judges);
28 U.S.C. § 173 (Court of Claims); 28 U.S.C. § 213 (Court of
Customs and Patent Appeals); 28 U.S.C. § 252 (Court of
International Trade (formerly Customs Court)) .
[
Footnote 3]
These amounts exceeded the levels these salaries would have
achieved had Congress left in effect the 4.8% increase from October
1, 1976. Therefore, appellees' complaint in No. 79-983 challenged
the statute in Year 1 only insofar as it affected judicial
compensation from October 1, 1976, to March 1, 1977.
See
n 6,
infra.
[
Footnote 4]
See also 123 Cong.Rec. 7126 (1977) (remarks of Sen.
Scott) ("prevents people . . . from receiving two pay raises in 1
year");
id. at 21121 (remarks of Rep. Solarz)
("individuals who have already received one increase during the
course of the current year should not be entitled to receive a
second increase as well");
infra at
449 U. S. 222,
and n. 24.
[
Footnote 5]
The 7% increase was computed on the salary levels as they stood
after the addition of the 5.5% increase deferred from Year 3. The
compounding of the two increases means that the employees affected
felt a combined increase of 12.9%. This explains the additional
0.4%.
[
Footnote 6]
The plaintiffs challenged the statute in Year 1 only insofar as
it applied to compensation earned from October 1, 1976, until March
1, 1977, the date the quadrennial increase under the Comparability
Act took effect.
See n
3,
supra.
[
Footnote 7]
For Year 1, the class was defined as all Article III judges
serving during part or all of the period October 1, 1976, to March
1, 1977, the date the quadrennial increase under the Comparability
Act took effect.
See n
6,
supra. For Year 2, the class was defined as all Article
III judges taking office prior to July 11, 1977, the date the
statute was passed, and continuing in office after October 1, 1977,
the date the Adjustment Act increase was due to take effect.
The case was referred to a newly appointed member of the
District Court who had taken office after October 1, 1977, and thus
was not a member of either class.
[
Footnote 8]
For Year 3, the class was defined as all Article III judges in
office on October 1, 1978, the date of the scheduled Adjustment Act
increase, and continuing in office thereafter. For Year 4, the
class was defined as all Article III judges in office on October 1,
1979, the date the Adjustment Act increase took effect, and
continuing in office through October 12, 1979, the date the Year 4
statute was signed.
[
Footnote 9]
This section provides in part:
"Any party may appeal to the Supreme Court from an interlocutory
or final judgment, decree or order of any court of the United
States . . . holding an Act of Congress unconstitutional in any
civil action, suit, or proceeding to which the United States or any
of its agencies, or any officer or employee thereof, as such
officer or employee, is a party."
[
Footnote 10]
This provision confers on the district courts and the Court of
Claims concurrent jurisdiction over actions against the United
States based on the Constitution when the amount in controversy
does not exceed $10,000. The complaints in both No. 79-983 and No.
79-1689 state that the claims of individual members of the classes
do not exceed $10,000, an allegation the Government has not
disputed.
See App. 9a, 62a.
[
Footnote 11]
This section provides in relevant part:
"(a) Any justice, judge, or magistrate of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned."
"(b) He shall also disqualify himself in the following
circumstances:"
"
* * * *"
"(4) He knows that he . . . has a financial interest in the
subject matter in controversy . . . ;"
"(5) He . . ."
"(i) Is a party to the proceeding. . . ."
[
Footnote 12]
See, e.g., ABA, Code of Judicial Conduct, Canon 3
(C).
[
Footnote 13]
Section 2109 provides, in relevant part:
"If a case brought to the Supreme Court by direct appeal from a
district court cannot be heard and determined because of the
absence of a quorum of qualified justices, the Chief Justice of the
United States may order it remitted to the court of appeals for the
circuit including the district in which the case arose, to be heard
and determined by that court either sitting in banc or specially
constituted and composed of the three circuit judges senior in
commission who are able to sit, as such order may direct. The
decision of such court shall be final and conclusive. In the event
of the disqualification or disability of one or more of such
circuit judges, such court shall be filled as provided in chapter
15 of this title."
The second paragraph of the section provides that, in all other
cases when a quorum of qualified Justices is unable to sit, the
Court shall enter an order affirming the judgment extant, which
shall have the precedential effect of an affirmance by an equally
divided Court.
The original version of this section was designed to ensure that
the parties in antitrust and Interstate Commerce Commission cases,
which at that time could be appealed directly to this Court, would
always have some form of appellate review.
See H.R.Rep.
No. 1317, 78th Cong., 2d Sess., 2 (1944). Congress broadened this
right in the 1948 revision of Title 28 to include all cases of
direct review. H.R.Rep. No. 308, 80th Cong., 1st Sess., A175-A176
(1947).
[
Footnote 14]
Rolle's Abridgment summarized this holding as follows:
"If an action is sued in the bench against all the Judges there,
then by necessity they shall be their own Judges."
2 H. Rolle, An Abridgment of Many Cases and Resolutions at
Common Law 93 (1668) (translation).
[
Footnote 15]
For example, in
Mooers v. White, 6 Johns.Ch. 360 (N.Y.
1822), Chancellor Kent continued to sit despite his
brother-in-law's being a party; New York law made no provision for
a substitute chancellor.
See In re Leefe, 2 Barb.Ch. 39
(N.Y. 1846).
See also cases cited in Annot., 39 A.L.R.
1476 (1925).
[
Footnote 16]
Moulton v. Byrd, 224 Ala. 403, 140 So. 384 (1932);
Olson v. Cory, 26 Cal. 3d
672, 609 P.2d 991 (1980);
Nellius v.
Stiftel, 402 A.2d
359 (Del.1978);
Dacey v. Connecticut Bar Assn., 170
Conn. 520, 368 A.2d 125 (1976);
Wheeler v. Board of Trustees of
Faro Consol. School Dist., 200 Ga. 323, 37 S.E.2d 322 (1946);
Schward v. Ariyoshi, 57 Haw. 348,
555 P.2d
1329 (1976);
Higer v. Hansen, 67 Idaho 45, 170 P.2d
411 (1946);
Gordy v. Dennis, 176 Md. 106, 5 A.2d 69
(1936);
State ex rel. Gardner v. Holm, 241 Minn. 125, 62
N.W.2d 52 (1954);
State ex rel. West Jersey Traction Co. v.
Board of Public Works, 56 N.J.L. 431, 29 A. 163 (1894);
Long v. Watts, 183 N.C. 99, 110 S.E. 765 (1922);
First
American Bank & Trust Co. v. Ellwein, 221 N.W.2d
50 (N.D.),
cert. denied, 419 U.S. 1026 (1974);
McCoy v. Handlin, 35 S.D. 487, 153 N.W. 361 (1915);
Alamo Title Co. v. San Antonio Bar Assn., 360 S.W.2d 814
(Tex.Civ.App.),
writ ref'd, no rev. error (Tex.1962).
[
Footnote 17]
E.g., Atkins v. United States, 214 Ct.Cl. 186, 556 F.2d
1028 (1977),
cert. denied, 434 U.S. 1009 (1978);
Pilla
v. American Bar Assn., 542 F.2d 56 (CA8 1976);
Brinkley v.
Hassig, 83 F.2d 351 (CA10 1936);
United States v.
Corrigan, 401 F.
Supp. 795 (Wyo.1975).
[
Footnote 18]
O'Malley cast doubt on the substantive holding of
Evans, see n 31,
infra, but the fact that the Court reached the issue
indicates that it did not question this aspect of the
Evans opinion.
[
Footnote 19]
In another, not unrelated context, Chief Justice Marshall's
exposition in
Cohens v.
Virginia, 6 Wheat. 264 (1821), could well have been
the explanation of the Rule of Necessity; he wrote that a court
"must take jurisdiction if it should. The judiciary cannot, as
the legislature may, avoid a measure because it approaches the
confines of the constitution. We cannot pass it by, because it is
doubtful. With whatever doubts, with whatever difficulties, a case
may be attended, we must decide it if it be brought before us.
We have no more right to decline the exercise of jurisdiction
which is given than to usurp that which is not given. The one
or the other would be treason to the constitution. Questions may
occur which we would gladly avoid; but we cannot avoid them."
Id. at 404 (emphasis added).
[
Footnote 20]
See Act of Mar. 3, 1911, ch. 231, §§ 20, 21, 36 Stat.
1090 (current version at 28 U.S.C. §§ 144, 455 (196 ed. and Supp.
III)). This statute applied only to district judges, but its
existence demonstrates that the Rule of Necessity has continued in
force side by side with statutory disqualification standards.
[
Footnote 21]
See, e.g., Carpenter, Judicial Tenure in the United
States 2 (1918) .
[
Footnote 22]
The rejection of Madison's suggestion of tying judicial salaries
to the price of some commodity may have arisen from colonial
Virginia's unsatisfactory experience with a similar scheme for
paying the clergy with a set amount of tobacco.
See
generally L. Gipson, The Coming of the Revolution, 1763-1775,
pp. 454 (1954); Scott, The Constitutional Aspects of the "Parson's
Cause," 31 Pol.Sci.Q. 558 (1916). Although ultimately the tobacco
statutes and the subsequent cases are more important as indications
of early dissatisfaction with the Crown, the widespread publicity
surrounding them surely made the Framers wary of indexing salaries
by reference to some commodity.
[
Footnote 23]
Indeed, in both
Mitchell and
Belknap, the
Court held that provisions in appropriations statutes funding
certain officials' salaries at amounts below those established
under previous statutes operated to repeal the relevant provisions
of those statutes and set new salary levels.
[
Footnote 24]
See, e.g., 123 Cong.Rec. 7095 (1977) (remarks of Sen.
Byrd) ("salaries . . . shall not be increased . . . thus
obviat[ing] the effect of the comparability pay provisions");
ibid. (remarks of Sen. Baker) ("forgo and rescind that
adjustment");
id. at 21121 (remarks of Rep. Solarz)
("knock[s] out the comparability increase for this year");
id. at 21125 (remarks of Rep. Ammerman) ("deny the October
1 cost-of-living pay increase").
[
Footnote 25]
Representative Shipley's original amendment applied only to
Members of the House of Representatives. The provision was expanded
to cover all officials subject to the Salary Act.
See 122
Cong.Rec. 28877 (1976). The Senate Committee studying the bill
recommended the provision be deleted altogether,
see
S.Rep. No. 91201, p. 2 (1976), but the Senate ultimately passed a
version applying the freeze to all Members of Congress,
see 122 Cong.Rec. 29132-29133 (1976). The Conference
Committee recommended that the freeze apply to all Salary Act
positions,
see H.R.Conf.Rep. No. 94-1559, p. 3 (1976).
This recommendation prevailed.
[
Footnote 26]
See, e.g., 122 Cong.Rec. 28865 (1976) (remarks of Rep.
Armstrong) (a "freeze of the salaries");
ibid. (remarks of
Rep. Yates) ("freeze the salaries");
ibid. (remarks of
Rep. McClory) ("effectively eliminate the . . . cost-of-living
increases");
id. at 28870 (remarks of Rep. Derwinski)
("freezing . . . pay at its current level");
id. at 28871
(remarks of Rep. Miller) ("stopping the pay raise");
id.
at 28879 (remarks of Rep. Anderson) ("block a cost-of-living pay
increase");
id. at 29132 (remarks of Sen. Taft)
("effectively freeze those salaries -- the employees would not be
given a cost-of-living raise on October 1, or a salary increase");
id. at 29164 (remarks of Sen. Allen) ("freezing the
compensation");
id. at 29172 (remarks of Sen. Allen)
("denied the upcoming increase"; "salaries frozen at the September
30, 1976, level");
id. at 29372 (remarks of Sen. Bartlett)
("automatic pay raises . . . eliminated");
id. at 31892
(remarks of Rep. Shipley) ("no October cost-of-living increases
would be made"; bill "proscribe[s] . . . the October cost-of-living
pay increase[s]");
id. at 31896 (remarks of Rep. Riegle)
("elimination of the cost-of-living raise").
[
Footnote 27]
See, e.g., 124 Cong.Rec. 17603 (1978) (remarks of Rep.
Shipley) ("pay freeze");
id. at 17604 (remarks of Rep.
Armstrong) ("automatic cost-of-living increases will not be
permitted");
id. at 24375 (remarks of Sen. Sasser)
("freeze, during fiscal year 1979, the pay").
[
Footnote 28]
See, e.g., 125 Cong.Rec. 27532 (1979) (remarks of Rep.
Whitten) ("sharply decreas[es] such automatic increases");
id. at 27533 (remarks of Rep. Jacobs) ("rollback of the
automatic 12.9-percent salary increase");
id. at 28019
(remarks of Sen. Byrd) ("put a cap on that pay increase");
id. at 28020 (remarks of Sen. Magnuson) ("this is in the
nature of a cap, a limitation");
id. at 28108 (remarks of
Rep. Conte) ("reduces from 12.9 to 5.5 percent the increase in
pay").
[
Footnote 29]
The Government asks us to invoke the rule that the law does not
recognize fractions of a day,
see, e.g., 84 U.
S. United States, 17 Wall.191 (1873); it is argued
that we should treat the President's assent as having been given at
the start of October 1, the same time the Year 1 increase was to
take effect. It is correct that "the law generally reject[s] all
fractions of a day, in order to avoid disputes." 2 W. Blackstone,
Commentaries *141. Here, however, the Government acknowledges that
the statute was signed by the President
after the Year 1
increase had taken effect. This Court, almost a century ago,
stated:
"'[W]henever it becomes important to the ends of justice, or in
order to decide upon conflicting interests, the law will look into
fractions of a day, as readily as into the fractions of any other
unit of time. The rule is purely one of convenience, which must
give way whenever the rights of parties require it. . . . The law
is not made of such unreasonable and arbitrary rules.'"
Louisville v. Savings Bank, 104 U.
S. 469,
104 U. S.
474-475 (1881) (quoting
Grosvenor v. Magill, 37
Ill. 239, 240-241 (1865); citations omitted).
Accord, Combe v.
Pitt, 3 Burr. 1423, 97 Eng.Rep. 907 (K.B. 1763); 2 C. Sands,
Sutherland on Statutory Construction § 33.10 (4th ed.1973).
In
Burgess v. Salmon, 97 U. S. 381
(1878), this Court was required to look to the time of day when a
statute was enacted as compared to another and related event. This
Court held that, notwithstanding the general rule, a person could
not be subjected to a civil fine for violating a statute passed on
the same day he engaged in the conduct but after that conduct had
occurred. To impose a penalty on an act innocent when performed
would render the statute an
ex post facto law.
Id. at
97 U. S.
384-385. Thus,
Burgess dealt not so much with
benefits and penalties as it did with constitutional limitations on
the legislative authority of Congress and the Executive. In the
context of periodic increases, the Compensation Clause, like the Ex
Post Facto Clause of Art. I, § 9, places limits on Congress and the
President. Because of the constitutional implications, the logic of
Burgess applies to the statute for Year 1 and requires us
to look to the precise time the statute became law by the
President's action.
[
Footnote 30]
We need not address the question of whether evidence of an
intent to influence the Judiciary would invalidate a statute that,
on its face, does not directly reduce judicial compensation.
See Evans v. Gore, 253 U. S. 245,
253 U. S. 252
(1920).
[
Footnote 31]
In
O'Malley v. Woodrough, 307 U.
S. 277 (1939), this Court held that the immunity in the
Compensation Clause would not extend to exempting judges from
paying taxes, a duty shared by all citizens. The Court thus
recognized that the Compensation Clause does not forbid everything
that might adversely affect judges. The opinion concluded by saying
that, to the extent
Miles v. Graham, 268 U.
S. 501 (1925), was inconsistent, it "cannot survive."
307 U.S. at
307 U. S.
282-283. Because
Miles relied on
Evans v.
Gore, O'Malley must also be read to undermine the reasoning of
Evans, on which the District Court relied in reaching its
decision.
[
Footnote 32]
United States v.
More (CC DC 1803),
writ of error dism'd for
want of jurisdiction, 3 Cranch 159 (1805), is not to the
contrary. Congress had enacted a system of fees for compensating
justices of the peace in the District of Columbia, but subsequently
abolished the fees. The Government brought an indictment against a
justice of the peace who had continued to charge the fees, and the
defendant demurred. The Circuit Court for the District of Columbia
held that the compensation of justices of the peace in the District
of Columbia was subject to the Compensation Clause and that a
statute diminishing (here, abolishing) the fees violated the
Constitution.
Id. at 161, n. [argument of counsel --
omitted]. In
More, the fee system was already in place as
part of the justices' compensation when Congress repealed it. Here,
by contrast, the increase in Year 2 had not yet become part of the
compensation of Article III judges when the statute repealing it
was passed and signed by the President.
[
Footnote 33]
Indeed, it would be particularly ironic if we were to bind
Congress to an indexing scheme for salaries when the Framers
themselves rejected an indexing proposal.
See supra at
449 U. S. 220.
Of course, indexing techniques have improved since 1787.
Nevertheless, Congress' repeated rejections of specific adjustments
indicates some dissatisfaction with automatic adjustments according
to a predetermined formula, even if not with the formula
itself.
[
Footnote 34]
Most positions covered, of course, are in the Executive Branch,
which may explain the limited title.
[
Footnote 35]
Several Members of Congress acknowledged the potential
constitutional problem with rolling back the salary increase
already in effect for judges.
See 125 Cong.Rec.
27529-27530 (1979) (remarks of Rep. Latta);
id. at
27531-27533 (remarks of Rep. Whitten);
id. at 27533
(remarks of Rep. Jacobs);
id. at 28022 (remarks of Sen.
Stevens). Representative Whitten, the Chairman of the House
Appropriations Committee, stated that "the courts will have to make
a final determination regarding this issue."
Id. at
27532.