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Does The Constitution Bar Hillary Clinton From Becoming Secretary of State? [Emoluments clause]

Donklephant ^ | November 24th, 2008 | Doug Mataconis

Posted on by Mike Fieschko

It hasn't reached the mainstream media yet, but in the days since Hillary Clinton's nomination to be Barack Obama's Secretary of State became official, there's been some discussion of a little-known provision in the Constitution that could bar Hillary Clinton from serving at Foggy Bottom: [S]pecifically, Article One, Section Six, also known as the emoluments clause. ("Emoluments" means things like salaries.) It says that no member of Congress, during the term for which he was elected, shall be named to any office "the emoluments whereof shall have been increased during his term." This applies, we're advised, whether the member actually voted on the raises or not.



In Clinton's case, during her current term in the Senate, which began in January 2007, cabinet salaries were increased from $186,600 to $191,300. The language of the section itself would seem to be rather clear: 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. Since the salary for Cabinet Secretaries was increased while Hillary Clinton was a Senator, the Emolument Clause, as it's called, would seem to apply pretty clearly.



There is a work around, but it's Constitutionality is dubious: That "fix" came in 1973, when President Nixon nominated Ohio Sen. William Saxbe (R) to be attorney general after the famed "Saturday Night Massacre" during the Watergate scandal. Saxbe was in the Senate in 1969 when the AG's pay was raised.



(...)



Democrats in the past have inveighed against this sleight-of-hand. In the Saxbe case, 10 senators, all Democrats, voted against the ploy on constitutional grounds. Sen. Robert C. Byrd (D-W.Va.), the only one of them who remains in the Senate, said at the time that the Constitution was explicit and "we should not delude the American people into thinking a way can be found around the constitutional obstacle." Michael Stokes Paulson, a Law Professor who has written on the application of the Emoluments Clause in the past, says this regarding the Clinton appointment: The Emoluments Clause of Article I, section 6 provides "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 encreased during such time." As I understand it, President Bush's executive order from earlier this year "encreased" the "Emoluments" (salary) of the office of Secretary of State. Last I checked, Hillary Clinton was an elected Senator from New York at the time. Were she to be appointed to the civil Office of Secretary of State, she would be being appointed to an office for which "the Emoluments whereof shall have been encreased" during the time for which she was elected to serve as Senator. The plain language of the Emoluments Clause would thus appear to bar her appointment ... if the Constitution is taken seriously (which it more than occasionally isn't on these matters, of course).



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Unless one views the Constitution's rules as rules that may be dispensed with when inconvenient; or as not really stating rules at all (but "standards" or "principles" to be viewed at more-convenient levels of generality); or as not applicable where a lawsuit might not be brought; or as not applicable to Democratic administrations, then the plain linguistic meaning of this chunk of constitutional text forbids the appointment of Hillary Clinton as Secretary of State. I wouldn:t bet on this actually preventing the appointment, however. It didn't stop Lloyd Bentsen from becoming Secretary of State [This appears to be a typographical error. Bentsen, of course, was Bill Clinton's first Secretary of the Treasury]. But it does make an interesting first test of how serious Barack Obama will be about taking the Constitution's actual words seriously. We know he thinks the Constitution should be viewed as authorizing judicial redistribution of wealth. But we don't know what he thinks about provisions of the Constitution that do not need to be invented, but are actually there in the document. Paulson's argument is certainly persuasive, and while it's unlikely under present circumstances that any Court will entertain a lawsuit seeking to invalidate Clinton's appoint, it's fairly clear that if the words of the Constitution are supposed to mean what they say, then Hillary Clinton should not be Secretary of State.

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(Cleaned up a lot of the html in this article. Man, was it full of garbage.)



To: Mike Fieschko

And the Constitution also bars none citizens from the presidency. Not many of the children care. Yes we can. Give it to us now. So don’t count on this getting in the way.



To: Mike Fieschko

Constitution, schmonstitution! Hillary Clinton as Secretary of State is change we can believe in. /barfalert



by 3 posted onby advance_copy (Stand for life or nothing at all)

To: All

The Constitution only matters to crazy white people.



To: Mike Fieschko

Still, how does Bill Richardson feel with Hillary possibly becoming Secretary of State? Richardson would be just another unknown Congressmen if it weren’t for the Clintons. Yet he threw them under the bus and endorsed Obama. Now Obama appoints Hillary to the job he wants (and may be the most qualified Democrat for the position)?



To: Mike Fieschko

Emoluments ahould be the Word of the Day for today.



by 6 posted onby WayneS (Respect the 2nd Amendment; Repeal the 16th)

To: bobjam

Hey, that’s life as a former Klintonista! He knew the risks...



by 7 posted onby WayneS (Respect the 2nd Amendment; Repeal the 16th)

To: Mike Fieschko

Man! That Constitution is a great piece of work. We should refer to it more often!



by 8 posted onby wolfcreek (I see miles and miles of Texas....let's keep it that way.)

To: WayneS

I like to take a warm bath with them.



To: Mike Fieschko

Although I never like the Red Queen, I have no problem with her being SOC. The alternative, though, might be Kerry, and I would have issues with that.



To: BuffaloJack

If the constitution was obeyed instead of ignored Kerry would also be prevented from being Sec. of State.



by 11 posted onby Russ (Repeal the 17th amendment)

To: BuffaloJack

Is there one last Republican standing with the guts to challenge her appointment?



by 12 posted onby Russ (Repeal the 17th amendment)

To: Mike Fieschko

It says "when he was elected". Doesn't apply to Hillary!



To: Mike Fieschko

Well at the very least appointing Hillary to Foggy Noggin could provide some comic relief as well as increase popcorn sales.



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