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Constitutional Opinions
Hillary May Be Unconstitutional
Hillary Clinton is President-elect Barack Obama's choice for the nation's top diplomat. Setting aside the wisdom of such an appointment -- putting aside ideology, does she have both foreign policy expertise and a good working relationship with the incoming president? -- it appears that there may be genuine constitutional problems with her nomination to be Secretary of State.
To wit, article I, section 6, clause 2 of the Constitution reads: "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…."
That is, under this "Emoluments Clause," members of Congress are expressly forbidden from taking any federal position which was created or whose pay has been increased during their current term of office. Now, as irony would have it, President Bush signed an executive order in January of this year that raised the Secretary of State's salary. He did this not willy-nilly but in accordance with a statute from the 1990s that addressed cost of living adjustments for certain federal officials. The order's effect, however, is to constitutionally prohibit any then-serving senator, including the junior senator from New York, from taking charge of Foggy Bottom. (Sen. Clinton's current term began in January 2007 and expires in January 2013.)
Not surprisingly, this is not the first time such a conflict has arisen in executive appointments and nominations and, predictably, Congress has on several occasions legislated around it. To enable one of its own to assume executive office, Congress simply decreases the pay of that office to the pre-raise level for the full tenure of that specific appointee.
Although this legerdemain has been around since at least the Taft Administration, the move is called the "Saxbe Fix" after Sen. William Saxbe, whom President Nixon nominated to be Attorney General. Before Congress last week passed such a Fix for Sen. Clinton, it was most recently employed by her husband, when he picked Sen. Lloyd Bentsen to be his Treasury Secretary.
While clever, the Saxbe Fix is not uncontroversial. Steptoe and Johnson partner John O'Connor, then a captain in the Marine JAG corps, concluded in an exhaustive law review article in 1995 that it is inadequate for circumventing the Emoluments Clause. To O'Connor's thinking, while simply lowering the salary -- resulting in no "net" increase for the duration of the appointment -- does prevent the nominee from directly benefiting from a vote he or she cast (perhaps in collusion with the president), the Saxbe Fix does not substantively address the Framers' intent to limit the size and scope of the federal government. If, contrary to the express terms of the Emoluments Clause, Congress can restore its members' eligibility for appointment simply by reducing an office's salary, the clause ceases to serve its function as a constitutional disincentive for regular expansion of federal offices and their corresponding budgets.
Ten Democratic senators voted against the Fix in Saxbe's case -- including the only one still in office, president pro tempore (then and now) Robert Byrd of West Virginia, who said that "we should not delude the American people into thinking a way can be found around the constitutional obstacle." Reagan administration officials declined to select Sen. Orrin Hatch for a Supreme Court vacancy in deference to such qualms (leading to the nominations of Robert Bork, Douglas Ginsburg, and Anthony Kennedy, and thus indirectly to our dysfunctional confirmation process).
While the interpretation that has traditionally carried the day is that net increases during the relevant term of legislative office are the key consideration, it is thus hard to ignore the Emoluments Clause's plain meaning: a decreasing offset does nothing to change the constitutionally problematic fact that pay and benefits "have been encreased."
One could argue that Hillary Clinton never sat in a Congress that increased anybody's salary; it was that long-ago Congress that even gave that option to the president -- and only in the form of an across-the-board cost of living adjustment, not some shady or opportunistic self-dealing. And it is fantastic to imagine that President Bush and Sen. Clinton joined in some sort of vast both-wing conspiracy to expand the trappings of the Secretary of State. But, of course, if we are to be honest about what we read in the Constitution, there is no exception for offices whose emoluments have been increased "by a non-shady COLA granted via statutorily-enabled executive order."
Whether anyone could challenge Hillary Clinton's appointment in the courts is another matter. Most likely such a challenge would have to be filed after the fact: Perhaps someone denied a passport, or who has had some other adverse action done to them by a Clinton-led State Department, would have standing to sue. In any event, in this time of constitutionally questionable bailouts, we cannot afford to be less than vigilant even about the most obscure text from our nation's governing document.
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George Thompson| 12.17.08 @ 9:31AM
There will be no conflict between Mrs. Clinton’s Secretary of State appointment and The Constitution. Obama is a Constitutional scholar and a former professor of Constitutional Law who plans to appoint judges who will legislate fixes to such oversights by the Founders. Never mind, that Obama himself was unaware that the very babies he voted to allow die while an Illinois Senator, were in fact , according to the 14th Amendment, U. S. citizens. Hillary is the smartest woman in the world and one of our sharpest legal minds. In addition, her knack for playing the cattle futures market will help solve all our current economic woes.
If nothing else, Obama deserves praise for removing three of our most liberal senators from office. Now if he just could find a cabinet position for Teddy.
Sarah Becker| 12.17.08 @ 12:19PM
Congress has already adjusted her salary, removing any questions.
Rudiger Laufhutte| 12.17.08 @ 12:21PM
Regarding George Thompson's fine post: how about the liqour cabinet?
daboss| 12.17.08 @ 12:36PM
The fact that congress adjusted the salary ONLY meets one condition of the clause:
To wit, article I, section 6, clause 2 of the Constitution reads: "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 [emphasis added] the Emoluments whereof shall have been encreased during such time….
So my reading is the fact that she is a sitting senator she cannot move into the executive during her term OR after her term when there was a pay raise.
I guess that is the programmer in me … because if one part of the OR is met, then it applies. Kinda like “cruel AND unusual” … yes the death penalty is CRUEL – but it is NOT unusual.
Maybe the Oman can give us lowly readers of the constitution some guidance on this matter.
But then, it’s the constitution … who cares about it anyway …. Surely not this administration anymore or the next administration either.
Thomas| 12.17.08 @ 12:52PM
The Saxby Fix is already in. The Emolument Clause is effectively dead.
Now, the "natural born citizen" clause has not yet been rumored mute. So, it is still possible that any of BHO's cabinet appointments may be unconstitutional and rendered void.
daboss | 12.17.08 @ 12:59PM
Thomas – I am no constitutional scholar (although I did stay the night at a Holiday Inn Express) but the LEFT side of the OR still applies … plus you cannot just legislate a constitutional fix …you have to amend it.
Unlikely any court would tackle the natural born citizen clause – unless a senator and congressman objects during the electoral vote certification. Although it would make an interesting article to actually find out who vets candidates and how constitutional eligibility is actually determined and verified.
Joel B.| 12.17.08 @ 3:36PM
daboss - You are correct in your interpretation of the words 'or' and 'and'; however, the first section of the clause is "which shall have been created". The wording of this clause discusses the creation of a new position and not the appointment to an already existing position. If Sen. Clinton was appointed to a newly created cabinet post (one created during her current term) there would be a constitutional issue with the left hand side of this clause. Since the position of Sec. of State is not a newly created position, her appointment would pass constitutional muster.
As for legislating 'fixes' to our Constitution, in this instance, it is acceptable, because the Saxby fix brings an action into compliance with the Constitution rather than being an end run around the Constitution. The checks and balances within our Constitution allow and require legislative ‘fixes’. For an example, President Bush’s detainee act was written, to the best of its ability, to pass Constitutional muster; the SCOTUS disagreed (for reasons that are unnecessary to debate now). Therefore it was prudent that the legislation be ‘fixed’ to pass Constitutional muster, which eventually it was.
Unless there a constitutional question about the validity of the Saxby law itself, I do not see how this issue would disqualify Sen. Clinton from being Sec. of State.
Derek P| 12.17.08 @ 3:44PM
"Now if he just could find a cabinet position for Teddy. "
Dept of Interior Lakes and Streams Commissioner?
daboss| 12.17.08 @ 3:46PM
Joel - thanks for the clarification ... learned something new today.
Thomas| 12.17.08 @ 5:21PM
The Congress has performed an end-around with regards to the Enumeration Clause several times in the past. Whether the "fix" is Constitutional has never been adjudicated, nor is it likely to be anytime in the near future. There is now enough "precedent" to make it difficult to hold future administrations to the letter of the Constitution in the case of the Enumeration clause. Hillary will not be denied the position of SecState for this reason.
As for the "natural born citizen" clause. Simply inaugurating a person into the Office Of President of the United States does not render the clause inapplicable. What it would do is possibly void any executive actions taken by the ineligible candidate, any laws enacted under his signature and any government actions taken as a result of those laws. This is now becoming an issue in the minds of many people. If it is not addressed now, future revelations could cause a grave crisis for this country.
DaveS| 12.17.08 @ 6:27PM
Just resign before the vote, Hillary - and we'll all hope for the best.
Xavier| 12.18.08 @ 3:36AM
You're correct, I think, daboss, and your Boolean training serves you well. The Constitutional article envisions two possibilities: the creation of a new office OR the increase of emolument of an existing office. Senators and Representatives sitting at the time of either occurrence are prohibited from appointment to the affected Executive office, whether new or modified in emolument. The fact that the emoluments might later be adjusted to conform to contingent political realities doesn't alter the Constitutional proscriptions.
The political class certainly can, and will, do as they wish, and Senator Clinton will take office at State irrespective of this Constitutional clause. With suitable figleafs, it seems, but not addressing the plain language of the article.
Joel B: I mean no aspersion on your viewpoint or self. You've put forth a coherent argument and I honor you for the civility of your postings.
Melvin | 12.18.08 @ 7:27AM
People, all very fine, respective, and coherent posts above, but.... since when does any of the three branches of government follow the Constitution and all that it encompasses?
The Constitution of the United States is treated by the Executive, Legislative, and Judicial Branch's of our government as if it were toilet paper, once all the legalese is removed.