Obama to nominate Hillary as Secretary of State Monday despite Constitutional prohibition
President-elect Barack Obama
plans to nominate Senator Hillary Rodham Clinton as his
secretary of state on Monday.
Hillary’s nomination will be made in the face of the Constitutional
prohibition in the Emoluments Clause (Article I, Section 6, clause
2):
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 increased during such time: and no person holding
any office under the United States, shall be a member of either
House during his continuance in office.
That’s quite clear. A Senator, such as Hillary, is prohibited from
serving in any federal office “created” or the “emoluments whereof”
were increased during the Senator’s term.
The salary of the Secretary of State was increased in
January 2008 by an executive order, promulgated pursuant to a 1990s
cost of living adjustment statute. Because the increase occurred
during the time Hillary was a Senator she can not be the Secretary
of state.
This issue has been discussed quite a bit in the blogoshpere
during the last couple of weeks. One of my favorite Constitutional
scholars, Professor Eugene Volokh — the Gary T. Schwartz Professor
of Law at UCLA School of Law, has written about Hillary and the
Emoluments Clause.
Professor Volokh concludes “it is beyond dispute that Senator
Clinton is currently ineligible for appointment as secretary of
State.” I agree.
The problem has been faced before. Rather than abide the plain
language of the Constitution, Presidents Taft in nominating Senator
Philander Knox to be Secretary of State, Nixon in nominating
Senator William Saxbe to be Attorney General, Carter in nominating
Senator Ed Muskie to be Secretary of State, and Clinton in
nominating Senator Lloyd Bentsen to be Treasury Secretary, all
decided not to let the U.S. Constitution stand in their way.
As President-elect Obama joins the company of Presidents Taft,
Nixon, Carter and Clinton, he will probably ask Congress to lower
the salary of Secretary of State back to what it was before Hillary
took office so that Hillary can take the appointment without a pay
increase that while she was in the Senate. Such a charade has come
to be known as “the Saxbe fix.”
But many legal scholars believe that the
Saxbe fix does not cure the Constitutional problem, because the
language of the Emoluments Clause is clearly an absolute
prohibition: No senator or representative, period.
Professor Volokh has also shared the thoughts of Professor Michael
Stokes Paulsen, author of Is Lloyd Bentsen
Unconstitutional?, 46 Stanford L. Rev. 907 (1994), on the
Saxbe fix:
A “fix”
can rescind the salary, but it cannot repeal historical events. The
emoluments of the office had been increased. The rule specified in
the text still controls.Unless one
views the Constitution’s rules as rules that may be dispensed with
when inconvenient; or as not really stating rules at all (but
“standards” or “principles” to be viewed at more-convenient levels
of generality); or as not applicable where a lawsuit might not be
brought; or as not applicable to Democratic administrations, then
the plain linguistic meaning of this chunk of constitutional text
forbids the appointment of Hillary Clinton as Secretary of
State.I wouldn’t
bet on this actually preventing the appointment, however. It didn’t
stop Lloyd Bentsen from becoming Secretary of State. But it does
make an interesting first test of how serious Barack Obama will be
about taking the Constitution’s actual words seriously. We know he
thinks the Constitution should be viewed as authorizing judicial
redistribution of wealth. But we don’t know what he thinks about
provisions of the Constitution that do not need to be invented, but
are actually there in the document.
It is sad to see President-elect Obama, a former lecturer on
Constitutional Law, show such a lack of respect for the
Constitution.
Perhaps Senate Democrats will stand on the same principals as
the 10 Democrat Senators who
voted against Senator Saxbe’s fix. Back then,
Senator Robert C. Byrd said, “the Constitution wasexplicit and ‘we
should not delude the American people into thinking away can be
found around the constitutional obstacle.’” What will Bryd say
about a Hillary fix?
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