It’s long been evident that the Constitution has only minimal relevance to American governance. Most everyone seems to believe that the natural born requirement means Arnold Schwarzenegger can’t be elected president, but not many other provisions are taken seriously.
One such rule is that no legislator can be appointed to the Cabinet if he or she was in office when Cabinet salaries were raised. Two decades ago the Justice Department took a principled position in interpreting this provision. No longer under Attorney General Eric Holder — who also doesn’t believe that “state” really means state for the purposes of congressional representation.
Relates my Cato Institute colleague Ilya Shapiro:
Now, in the most recent development in the “Is Hillary Clinton Constitutional?” saga the OLC reversed its own position from 1987 just in time for federal prosecutors to file a motion to dismiss a lawsuit challenging Clinton’s appointment that cites the new memo (see footnote 21). Indeed, the motion was filed the same day Acting Assistant Attorney General David Barron — who had previously rebuffed Holder on the DC Voting Rights Act (though we still have to see what the next confirmed OLC head says, be that Dawn Johnsen or someone else) — signed the new OLC memo.
The issue is that Clinton’s appointment to the cabinet — as well as that of Interior Secretary Ken Salazar — violates the Emoluments (sometimes called Ineligibility) Clause of Article I, section 6 because both she and Salazar were sitting Senators when cabinet salaries were increased. Congress later passed short laws reversing these raises for the duration of both officials’ tenures but, as I’ve argued previously – and as OLC head Chuck Cooper spelled out in the 1987 memo — there is no “net accounting” proviso which somehow erases the constitutional defect. While the new memo relies heavily on historical practice — several presidents going back to William Howard Taft (most recently Bill Clinton in appointing Lloyd Bentsen to be Treasury Secretary) have proceeded in this manner – the fact that political branches have acted in a certain way doesn’t speak to the constitutionality of that action.
In short, again the Obama Justice Department has found a politically expedient way of dealing with pesky constitutional issues. In this case, that way involved issuing a memo to buttress a motion being filed that very same day in federal court.
People typically hire lawyers to give them the answers they want, not the right answers. President Barack Obama obviously has hired just such a lawyer with his appointment of Eric Holder as Attorney General.
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