Volokh (twice), DailyKos, and some others have been talking about the Emoluments Clause and how it disqualifies Hillary from accepting the position of Secretary of State. First, the clause:

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.

The argument goes: Hillary Clinton served in the Senate during a period in which the compensation for the Secretary of State was increased by way of executive order, therefore she is ineligible to assume that position.

I read the clause to disqualify her from the office until 2012 (the ‘Time for which [s]he was elected’.) The only necessary condition for the clause is that emoluments ‘have been increased’ during the time. Most people can agree on this point but there is a small contingency- likely in the single digits- that believes that the Senate may simply lower the wage to pre-election levels for the potential nominee.

The most common fix for the Emoluments Clause is the so-called ‘Saxbe Fix’ although it was used long before Richard Nixon appointed Senator Saxbe to Attorney General in 1973. President Taft had used it in 1909 and its Constitutionality has been debated by subsequent administrations. Rumor has it that because the Reagan administration decided that the Saxbe Fix was unconstitutional, they avoided appointing Sen. Orrin Hatch to fill the seat left by the retiring Justice Lewis Powell. The administration would later appoint Anthony Kennedy to fill the seat after the failed nominations of Robert Bork and Douglas Ginsburg.

DailyKos has interesting analysis from Madison’s notes at the Constitutional Convention. I tend to think the Saxbe Fix conforms quite reasonably to the intent of the Emoluments Clause but does not stand up to what the text of the clause actually reads. Unfortunately then, I would consider the appointment of Hillary Clinton to Secretary of State (before 2012) to be unconstitutional.


7 Responses to “Does Hillary Clinton’s Appointment to Secretary of State Violate the Emoluments Clause?”

  1. 1 Jeffery Tippins

    Senator Clinton is not eligible for nomination to the Secretary of State post. The terminology of The Constitution is clear, but what is yet to be determined is if President-elect Obama will sidestep the very foundation of this country and temporarily have the emoluments for the lofty position reduced to accommodate the appointment. I am a steadfast Obama supporter, however it would certainly be a disappointment to have this “Washington As Usual” behavior taking place even before his swearing in. I have enormous respect for Senator Clinton. I believe she would pursue her duties in the post of Secretary of State as she historically has, with ferocious vigor, but the ink is on the page. Perhaps it was not meant to be. Regardless, end running The Constitution can not, and will not be viewed as the “change” we have all been promised, and so very desperately need.

    God Bless The Obama Family, and every American.

  2. 2 James

    Look, there are tons of “end runs” on the Constitution that happen all the time. Just look at your post, wherein you use the term “President-elect” to describe Barack Obama; he is, in fact, not the president-elect, but is rather the president-designate until the Electoral College meets on December 15th (or at least until the safe harbor date of December 9th). Until that body meets, no one has been elected president.

    The Saxbe Fix is what SCOTUS would probably call a “non-justicable political question” if it were to accept review, which it never would. The “guilty until proven innocent” mantra is just as valid in the separation of powers structure: any action is constitutional until proven otherwise. I imagine Clinton will be nominated and confirmed via a Saxbe Fix, and that will be that. In a way, this reminds me of the controversy over John McCain’s eligibility to assume the Presidency since he was born in the Panama Canal Zone: both were manufactured, both are questions of letter and not spirit, and both will be forgotten by history.

  3. 3 sidney jones

    It’s a great choice. Get with it and stop crying you anti-semites.

  4. 4 MK DAMODARAN

    HILLARY CLINTON was appointed Secretary of State on December 1.Her birth number is 8.Also,her name number is 8.On December 1,she was 61 years and 37 days old.The age adds up to 8(61 37=98,9 8=17,1 7=8)

  5. 5 Chet

    Like the Constitution really matters anymore. That One has not proven his eligibility to hold the office of Prez under Article 2, Section 1. Sheesh folks…wake up. We haven’t had a Constitional form of government for nearly 100 years.

  6. 6 Steven Pounders

    For anyone insisting on strict adherence to the constitution, I should point out that the argument against Senator Clinton’s appointment to the cabinet falls apart constitutionally. The article only applies “during the Time for which he was elected”.

    Clearly the Framers are not addressing female senators.

    Oh … but was that really the “intent” of the framers. Shouldn’t we follow the “principle” of the constitution rather than the letter?

    Well, not as Professor Michael Stokes Paulsen likes to point out “Unless one views the Constitution’s rules as rules that may be dispensed with when inconvenient” … because “the plain linguistic meaning of this chunk of constitutional text” does not apply to women. (I’m using Mr. Paulsen’s oft-quoted words against his own argument, of course.)

  7. 7 The Intellectual Redneck

    After discovering that Hillary was not Constitutionally qualified for the Secretary of State job because the salary of the secretary of State was raised while she was in the Senate, Congress and President Bush passed a bill lowering the Secretary Of State’s salary. There will likely be a federal lawsuit. I wonder if John Kerry will be the plaintiff?

    President Signs Bill Lowering Salary of Secretary of State
    December 19th, 2008

    On December 19, President George W. Bush signed Senate Joint Resolution 46, which lowers the salary of the Secretary of State from $191,300 to $186,600. SJR 46 had been introduced in the U.S. Senate on December 10, and it passed unanimously that same day. The House passed it unanimously on December 12. The reason for the bill is that Article I, section 6, says that no member of Congress may take an office if the salary for that office had been increased while that individual was in Congress. Senator Hillary Clinton was in Congress when the Secretary of State’s salary was increased in 2007. Link here.


Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Categories

Random Posts

  • Likelihood of a Petition Being Granted: There are a lot of numbers thrown out about the likelihood of a cert. petition being granted. The number I've always heard is 1%, but I some...
  • Updated Term Charts: Starting this week, I'll be posting my updated charts on SCOTUSblog. You can find the first SB version of my charts here. More spec...
  • Profile: H. Bartow Farr, III: In the past, we've profiled notable advocates and judges that were in the news. This is the first in a series of posts about the advocates w...
  • Advocate Watch: With the Term quickly approaching it's midway point, we can take a look at which advocates have made the biggest mark on the Term. Hearing L...
  • Another Addition to the Two-in-a-Month Club: Former Solicitor General Gregory Garre is scheduled to argue twice during the December sitting, a relatively uncommon feat for private pract...