Clinton's Confirmation May Spark Constitutional Battle

[Wretched Excess]

The biggest obstacle facing Hillary Clinton's Senate confirmation as President-elect Barack Obama's top diplomat may not be her husband's wheeling and dealing abroad for his foundation, as many suspected.

Instead, it could be the U.S. Constitution.

According to an emolument clause in the Constitution, no lawmaker can be appointed to any civil position that was created or received a wage increase during the lawmaker's time in office.

President Bush ordered Cabinet salaries raised to $191,300 from $186,600 by executive order early this year, while Clinton was senator.

"My understanding is that does prohibit her unless they can find some way around it and I gather that they have in the past," former Secretary of State Lawrence Eagleburger told FOX News.

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 The next 4 years are going to contain some fun for us.

**edited for photo**

[Chris_]

"My understanding is that does prohibit her unless they can find some way around it and I gather that they have in the past," former Secretary of State Lawrence Eagleburger told FOX News.

This, my friends, is exactly why the country is in for the ass-raping of it's life; politicians who think that the US Constitution is something to be "worked around", rather than adhered to like superglue.

[Thor]

And the Libtards accused Bush of destroying the Constitution....... Hell, the Obamassiah hasn't even been sworn into office and he's all ready to burn that "rag". WE need to take back our country!!

[TheSarge]

Since when has the CCF ever let something as trivial as The COnstitution get in their way?

[DumbAss Tanker]

The normal solution I believe is that she would just have to accept payment at the old rate, rather than be barred from the position entirely, even though that is not exactly what the clause says.  With her incredible beef futures trading acumen, I expect the pay difference would mean nothing to her anyway.

[Miss Mia]

The normal solution I believe is that she would just have to accept payment at the old rate, rather than be barred from the position entirely, even though that is not exactly what the clause says.  With her incredible beef futures trading acumen, I expect the pay difference would mean nothing to her anyway.

Yes, the fix is for her to just accept the position at the pay it was when she became a senator.  Just like when Taft nominated Knox as Sec. of State, he accepted the position at a lower pay rate.  It's also known as the "Saxbe Fix."

[djones520]

This, my friends, is exactly why the country is in for the ass-raping of it's life; politicians who think that the US Constitution is something to be "worked around", rather than adhered to like superglue.

What they where saying by that DS, is that former presidents have had it set so that the incoming cabinet members pay was reduced to the level that it was before the pay raise was voted it, so there was no conflict of interest.

[Thor]

Here's a decent analysis of it:

[Eugene Volokh, November 24, 2008 at 12:48pm] Trackbacks
Hillary Clinton and the Emoluments Clause:

There's been talk about whether Sen. Hillary Clinton is disqualified from a position as Secretary of State by the Emoluments Clause:

    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 ....

Adam Bonin's Daily Kos blog has a bit more on this, but the short version is that a Jan. 2008 executive order, promulgated pursuant to a 1990s cost of living adjustment statute, raised the salary of the Secretary of State, so the Emoluments Clause question is in play. I very recently read an article by John O'Connor on the subject, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89 (1995), so I asked him what he thought. Here's his answer (some paragraph breaks added); please note that I have some comments at the end of this post that express a somewhat different view:

    It seems to me that there are two questions regarding whether the Emoluments Clause to the U.S. Constitution (Art. I, § 6, cl. 2) renders Senator Hillary Clinton constitutionally ineligible for appointment as Secretary of State: (1) whether Senator Clinton is now ineligible for appointment; and (2) if Senator Clinton is ineligible for appointment, whether that ineligibility may be cured by the so-called “Saxbe Fix,” whereby the Secretary of State’s salary is reduced to the salary in effect before Senator Clinton’s current Senate term began.

    I think it is beyond dispute that Senator Clinton is currently ineligible for appointment as secretary of State. I also believe that the better construction of the Emoluments Clause is that the “Saxbe Fix” does not remove this ineligibility.

    The Emoluments Clause provides that “[n]o 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.” As I understand it, 5 U.S.C. § 5303 provides for an automatic annual increase in certain federal salaries, including the salary of the Secretary of State, unless the President certifies that an increase in salaries is inappropriate. The salary of the Secretary of State has increased during Senator Clinton’s current Senate term, which does not end until 2012. Therefore, under a straightforward application of the Emoluments Clause, Senator Clinton is ineligible for appointment as Secretary of State because the emoluments of that office “have been encreased” during Senator Clinton’s current Senate term, and this disability continues until the end of “the time for which [she] was elected, or until January 2013.

    I do not believe it affects the analysis that the salary increase occurred as a result of an Executive Order or that the statute creating these quasi-automatic salary increases was enacted prior to Senator Clinton’s current term. By its plain language, the Emoluments Clause applies when the office’s salary “shall have been encreased,” without regard to exactly how it was increased. Indeed, an early proposed draft of the clause included language limiting it to an increase of emoluments “by the legislature of the U[nited] States,” and was later revised to encompass any increase in emoluments. It is worth noting that several Framers thought, without much explication, that the clause was too lax as initially drafted. The clause also does not require that a Senator or Representative have voted for the increase.

    The more difficult question is whether Senator Clinton’s ineligibility for appointment may be cured legislatively through the “Saxbe Fix,” where Congress reduces the Secretary of State’s salary to a level at or below where it was when Senator Clinton’s current term began in 2007. The Saxbe Fix got its name because the Nixon administration sought to eliminate Senator William Saxbe’s ineligibility for appointment as Attorney General by reducing the salary of that office to the level that existed before Senator Saxbe’s appointment. Although there was some opposition on constitutional grounds (most interestingly by Senator Robert Byrd and then-Harvard Professor Stephen G. Breyer), the legislation passed and Saxbe was confirmed. Later, Lloyd Bentsen served as Treasury Secretary after “Saxbe Fix” legislation reduced the salary of that office to its level immediately before Senator Bentsen’s Senate term had begun.

    It is my view that the Saxbe Fix [] fails to remove an ineligibility for appointment. I believe the Saxbe Fix is ineffectual based on the plain reading of the Emoluments Clause and is also contrary to the intent of that clause. The Emoluments Clause provides an ineligibility for appointment to an office the emoluments of which “have been encreased.” Even if the emoluments of the office are later reduced, it seems to me that they “have been encreased” during Senator Clinton’s current Senate term even if they are later decreased.

    Professor Volokh suggested [in the e-mail requesting this response -EV] that the clause might be read so that the emoluments of an office “have been encreased” only if the salary at the time of appointment is higher than the salary at the beginning of the appointee’s congressional term. I do not think that is the best textual reading of the clause. The clause’s use of the past participle (I think that’s what it is) “have been encreased” focuses on acts prior to appointment, and not on where the office’s emoluments stand at the time of appointment as compared to some prior point in time.

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[crockspot]

I guess this means that Lurch is ineligible too...

[TheSarge]

I guess this means that Lurch is ineligible too...

He should be ineligible for other reasons...