Constitutional Opinions

Hillary May Be Unconstitutional

This wisdom of the Founders, confirmed once again.

By 12.17.08

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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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About the Author

Ilya Shapiro is senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.