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Are there any provisions in the United States Constitution, or other U.S. laws or regulations, that specifically prohibit—or otherwise preclude—the president from appointing him- or herself to the Supreme Court?

One possible consideration: At a minimum, since this would likely necessitate some overlap where the person has these two jobs at the same time, is it permissible for any single person to receive multiple paychecks from the Federal government on a given payday?

For the purposes of this question, we can assume the Chief Executive is a judge or lawyer and ostensibly qualified to serve as a Supreme Court Justice.

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Yes, constitutionally, the POTUS can serve other posts simultaneously.

This is because the Ineligibility Clause of the Constitution only applies to members of the Congress.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

(emphasis mine)

As this article by Quartz mentions that there isn't any law that disqualifies the POTUS from serving other posts simultaneously.

Moreover, there’s nothing in the derivative federal laws that expressly disqualifies the president of the United States from serving simultaneously—either in Title 3 (the president) or Title 28 (the Judiciary)—much less requires his resignation (although if someone does find such a citation, please share).

However, this being said, it doesn't mean that the President (Supreme Court Nominee) will be confirmed by the Senate as all Supreme Court nominees require Senate confirmation:

"he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court..."

(emphasis mine)

However, there likely would be a legal challenge since the executive branch of the government should be independent from the judiciary branch.


Also, a close, but not exact, example to your scenario would be William Taft who served as a Justice on the Supreme Court eight years after his term as POTUS ended. However, Taft did not appoint himself to the post (Warren Harding appointed him).

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    There may also be a constitutional challange, as this would - in spirit - violate separation of powers. – user4012 Feb 22 '17 at 14:31
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    Hmm, really, on separation of powers? I'm (obviously) no constitutional lawyer (or lawyer), but SOP seems more like an overarching design fact than an edict. Is there actually imperative language in the Constituion such that "the (three) powers shall and must remain separate?" – Glenn Slayden Feb 22 '17 at 14:38
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    @DavidGrinberg However, Justice Taft did not submit his own name, nor did he appoint himself, which was the nub of the question. – sabbahillel Feb 22 '17 at 15:02
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    Saying that Taft "stepped down" from the presidency is a bit misleading, as it suggests that he actively chose to leave the presidency. It's the kind of language that I'd expect if he resigned. Taft lost an election and his term ended. More than eight years later, he was appointed to the Supreme Court. Note: I'm not arguing with the technical truth, merely that it reads in an ambiguous way such that it could be incorrect. – Brythan Feb 22 '17 at 16:02
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    @GlennSlayden If you look at the Supreme Court's separation of powers cases, the crux of the doctrine seems to be that branches can't use their otherwise valid powers to do something that properly falls within the purview of another branch or intrudes on its authority. It is certainly at least arguable that the President and Congress together putting the President himself (who pretty much is the executive branch) on the Supreme Court is doing exactly this. – David Schwartz Feb 22 '17 at 19:12
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At a minimum, since this would likely necessitate some overlap where the person has these two jobs at the same time

This doesn't necessarily follow. Nomination and confirmation first; resignation followed by an oath of office afterward. No overlap. Note that a similar situation exists for members of Congress when they shift positions and they are in fact legally precluded from holding a second office.

is it permissible for any single person to receive multiple paychecks from the Federal government on a given payday?

Perhaps for any other employee of the executive branch, but not the President. From Article 2, Section 1.7 of the US Constitution, the domestic emoluments clause:

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased 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.

So no, the President can't take a paycheck as a Supreme Court Justice while serving as president. Whether that is sufficient to require the president's resignation in order to accept the Supreme Court Justice position is unclear. No one has ever tried it. The only president who became a Supreme Court justice was William Taft who was appointed three terms later by his successor's successor. Not even a hint of overlap.

Unlike with Congress and the President, there are no explicit constitutional rules limiting a Supreme Court justice from holding other jobs. Nor do their oaths have explicit references. It is possible that other legally applicable rules exist in their employee handbook or similar. Note that as a practical matter, all Justices have been required to give up other employment. For example, Elena Kagan had to resign as Solicitor General to become a Supreme Court Justice.

The domestic emoluments clause may be sufficient. It's certainly a peg on which the Supreme Court could hang a ban on holding both jobs. And there's certainly sufficient room to argue that it is not sufficient. It's a judgment call that could go either way.

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    It's a fairly regular thing to bypass the Ineligibility Clause by having Congress temporarily reduce the pay associated with a given position for the duration of a member's remaining term -- I imagine that could be done here too. – Charles Duffy Feb 22 '17 at 17:29
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    Would a president's choice to only take the minimum $1/year salary affect this? – mbomb007 Feb 22 '17 at 17:51
  • @mbomb007 precisely not, because usually $1 payments signify and function as legal 'consideration', a common law concept wherein no transaction where one of the parties sacrifices nothing can be binding (otherwise it's a gift, not a contract). In this case, the $1 payment is required because an employment contract which lacks consideration would not bind the employee. A penny would suffice, but $0 would not. – Glenn Slayden Feb 22 '17 at 20:06
  • @GlennSlayden but the president and justices are not employees; they're officers. There's no employment contract. There are laws on the books that specify that someone who holds multiple federal offices can't receive more compensation than would be due for a single full-time post, but it doesn't stop the person from holding them both. So a president who is also a justice would make the same $400k as one who is not, but that doesn't prevent the person from being a justice, too. – phoog Feb 23 '17 at 5:24
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[note: correction below]

The title of my question did not capture my original intent, which was to focus on holding both jobs at the same time. Since that intent was generally understood, I will award the "selected answer" accordingly.

But as for editing the title of the question, it does not feel fair to do so after so much interest and lively debate have been generated. This leads to a situation where, technically, the question as stated remains unanswered.

So for completeness:

Can the president appoint him- or herself to the Supreme Court?


No, because the President does not appoint anyone to the Supreme Court. He or she only submits a nomination which is subject to confirmation by the Senate.

And the obvious follow-up:

Can the president nominate him- or herself for the Supreme Court?


Yes. But judicial action or failure in confirmation might block the appointment.


[edit: correction] From the comments, @phoog points out that, in fact, after Senate confirmation, it is the duty of the President to formally make the appointment. My mistake in the above was to use information from Wikipedia, which currently states:

Article Two... requires the President... to nominate Supreme Court Justices and, with Senate confirmation, requires Justices to be appointed.

The passive sentence ends there (without a "by" clause), so it puts focus on all of the "requiring" that "Article Two" is doing, without having to commit to who's doing the nominating (President), confirming (Senate), or appointing (President). Worse, I misread it, getting that the Article itself (or the Constitution) was authorizing the appointment; I actually remember thinking at the time that that was kind of weird.

Anyway... I should have simply checked the Constitution itself. But it can be tedious to read, due to its exuberant use of embedded clauses. So here's the the actual text of Article 2, Section 1.7, with the excess clauses excised to focus on the relevant issue. I also added a set of parentheses indicating my interpretation of the remaining clause structure:

..., and [the President] shall... nominate, and [,] (by and with the Advice and Consent of the Senate), shall appoint... Judges of the Supreme Court.

So now, the question that's raised is whether this designation of Chief Executive as "appointer" is simply a mysterious formality, versus it possibly introducing tangible or even substantial effects.

  • But this is incorrect. Once the nomination has been approved, the president makes the appointment. – phoog Feb 23 '17 at 23:51
  • From article 2, section 2, emphasis added: and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court... Here's an example; sorry it's sideways: supremelaw.org/rsrc/commissions/hogan.thomas/commission.gif – phoog Feb 24 '17 at 1:27

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