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.
