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):
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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.
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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?
The constitution means nothing to most politicians.
Congressman Billybob
Latest article, "The Prince of Dark Corners"
The Declaration, the Constitution, parts of the Federalist, and America's Owner's Manual, here.
Breaking the law, already?
WTH?
I would suspect this time though that the salary will NOT be reduced. Any fear of the Constitution is now blase to the large majority of the American sheeple.
We shall have an undocumented worker as president and an unconstitutionally appointed Sec of State.
Oh yeah! And the current VP of La Raza will be getting a cabinet post as well.
See why God hates democrats?
Since when do rules apply to the Left?
You’re not thinking the right thoughts. Off to rehab with you.
I don’t have a problem with it if she doesn’t get the raise she voted for.
I would hold that since the increase in salary was only to compensate for inflation of our fiat currency, it is not an increase in emoluments under the Constitution. In fact if you look at the salary for the Secretary of State in ounces of gold, I’d bet it has decreased sharply since Hillary was last elected in 2006. Therefore in my opinion Hillary Clinton is eligible for the office of Secretary of State. Unfortunately the man nominating her is not eligible for the office of President!
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
Well, you have a guy who probably is not a ‘natural born citizen’. As such, what does he care about the Constitution, anyway.
Maybe Zero is using this proscription tactically. He knows she's ineligible, so if she fails, he gets the feelgoods from the Hillary group without having to deal with such a toxic lump in his administration. If he can somehow force it through, he's paved the way for further marginalization of the constitution as written.
Oh, what the heck, it’s only that pesky Constitution. Hussein and his donkeys will find a Federal judge somewhere to declare our Constitution unconstitutional and the press will help.
Marc Rich may have bribed Clinton to the tune of 250 mil for his pardon. Denise Rich must be called in the Holder and Hillary confirmation hearings.
http://www.youtube.com/watch?v=cAkaPaPRygo
They are made for each other. Just another two traitors to America. I beleive the Clintons were all about not following the law too.
I am wondering what the “intent” of this article of the constitution is.
As someone else in another forum states : “The debate centers about conflict of interest, which very much seems to be the essence of the Emoluments clause — and a conflict of interest exists if the salary the person who benefits from higher emoluments which he himself brought about. No higher salary — no conflict of interest.
According to this site :
http://dcjobsource.com/presidentialsalaries.html
Hillary’s salary as Senator is : $169,300
As Secretary of State, she would get : $191,300
All she needs to do (I believe) is agree to retain her current salary and the issue could be deemed resolved.
For Hillary (who with her husband, is worth $100 Million ). Accepting a lower salary for the position of Secretary of State would be chicken feed for the prestige of the position, which in the end, she craves.
Mystery solved!
Article I, Section 6, Clause 2 must be the “fundamental flaw” which Obama says the Constitution contains to this very day!
http://www.freerepublic.com/focus/f-news/2116366/posts
No doubt he is okay with the rest of the document, right?
Is Impeachment off the table? Investigations will start 1/21/2009. Bring back Fitzmas.
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