Posted on 11/30/2008 6:21:42 PM PST by SeekAndFind
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):
--------------------------------------------------------
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 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?
boy our PUMA friends really helped us in PA this election. RINOS.
The Constitution is ignored each and every day by politicians, judges, and others who find it a bother. Have you ever read the 10th Amendment?
So, if the Hildabeast simply resigns first (the letter is ready no doubt), and does without the COLA, the law regarding that having been passed before she first ran for office, shouldn't be a problem at all.
Now the question is, if she resigns as Senator can she trust Obama to go ahead and nominate, then appoint her to the position?
Dum, dum, Dum, dum, dum, dum, dum, dah~~~ "Candygram"?
Regarding what the Founders intended with this piece of the Constitution we must remember that at the time most members of Congress and most Executive branch officers received the greater part of their incomes from their own personal fortunes or from bribes paid to them.
A strict constructionist must examine the Constitution from those angles to comprehend this one in full.
Realistically, Hillary Clinton is the best we’re gonna get. I hate to think who Obama would nominate if she didn’t make it for some reason. His cultists are already howling that she’s too conservative. If these people had their way, Obama would probably nominate, I dunno, that Camp Casey woman.
Dick Cheney was a member of Congress when he was appointed Secretary of Defense in 1989. Did this issue not come up then? The Democrats controlled Congress at the time.
“This problem was solved by decreasing the salary of the appointed position to what it was before.”
Sounds good to me. I want her as SoS. Should be some interesting backstabbing.
Ahh....what use is the constitution to Barry and his minions.
They are the all knowing, and most merciful.
/sarc
I think Hillary would do less damage than Kerry, who is probably second choice for SecState.
So I guess my question is, Is the White House Chief of Staff a “Federal Office.”
Hillary’s salary as Senator is : $169,300
As Secretary of State, she would get : $191,300
CHUMP “CHANGE”!
The goal of this act is to prepare the Obamanation of desolation to accept the Obama, the “abomination of desolation”, being kicked out by the “second coming” of the “son of Man”, which now has to be a woman and a wife.
http://engforum.pravda.ru/showthread.php?t=233644
I asked that a week or so ago - about resignation....and was told she would not have to resign first.....hhmmmm....because, I think she CANNOT trust Obama....what better thing could happen to him....have Hillary out of the Senate....and then NOT confirmed (not Obama’s fault) by the Congress....the Clinton’s would really be in a bad place when that happens....
bump ... typical democrat.
Fantasy-that-the-Constitution-still-matters ping
Good post devolve. We posted at the same time!
Interesting article.
I'm guessing this clause was originally designed to prevent the creation of high-paying civil service jobs with the promise to appoint a Congressman to the position in exchange for his support for some other measure. At the time I suppose there were a few relatively poor Congressmen (even people from the upper crust of society were often not rich) who would have happily resigned their seats in exchange for a high-paying sinecure; now it's highly unlikely anyone would give a seat up for a few hundred thousand dollars a year, given the much greater prestige now attached to a seat in Congress.
Screw the Constitution.
.
Good timing potlatch!
Amazing the amount of FReepers who consider ignoring the US Constitution to be no big deal - Just a minor thing
Thereby setting up precedents for more and more violations of the Constitution
I think we’ll see much more of this -
mr. creepy-elect has already revised his “no lobbyists in my administration” campaign promise of “CHANGE”
I guess the promised “CHANGE” is simply “CHANGE” in what mr. creepy-elect promised
Make everything up as you go -
Just like the mythical “Office of the President-Elect” on his podiums
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.