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Wednesday, November 26, 2008

Is Clinton Barred By Constitution From Secretary of State Job?

Crossposted from Stop the ACLU

From Marc Ambinder:

Pete Williams of NBC raised the question on MSNBC this afternoon: Is Hillary Clinton barred by the Constitution from accepting the post of secretary of state?

Article One, Section Six of the U.S. Constitution says:

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.

I have no idea if this means she can't take the office because salary for cabinet positions was increased last year while Clinton was a Senator. I doubt anyone will seriously challenge this position on these grounds, but it may make Obama and Clinton think twice. Any constitutional scholars or lawyers out there want to weigh in on this one?

One commenter at Say Anything says this has happened before:

This is not the first time this Article has stood in the way of a cabinet appointment. In 1973, at the height of Watergate, President Richard Nixon nominated William Saxbe (R) to be Attorney General and the issue was raised because Saxbe was in the Senate in 1969 when the Attorney General’s pay was raised.

In that instance, Congress lowered the pay for the AG, allowing the appointment to proceed. Democratic Senators complained, however, and 10 senators actually voted against the transparent scheme on constitutional grounds. At the time, Sen. Robert C. Byrd deemed it was clearly unconstitutional saying we should not delude the American people into thinking a way can be found around the constitutional obstacle.

I'm sure this precedent will proceed, however it doesn't satisfy all constitutional scholars:

The usual workaround is for Congress to lower the salary of the job back to what it was so that the nominee can take it without receiving the benefit of the pay increase that was approved while the nominee was in Congress. This maneuver, which has come to be known as "the Saxbe fix," addresses the clear intent of the Constitution, to prevent self-dealing.

But many legal scholars believe it does not cure the Constitutional problem, because the language of Article I is so clearly an absolute prohibition: No senator or representative, period.

"The content of the rule here is broader than its purpose,” said Professor Michael Stokes Paulsen, a Constitutional law expert at St. Thomas School of Law in Minneapolis. “And the rule is the rule; the purpose is not the rule.”

"A 'fix' can rescind the salary,” he added, “but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls.”

Quite an interesting puzzle.

Others: Ed Morrissey
Robert Stacey McCain
John Brodigan