It hasn’t reached the mainstream media yet, but in the days since Hillary Clinton’s nomination to be Barack Obama’s Secretary of State became official, there’s been some discussion of a little-known provision in the Constitution that could bar Hillary Clinton from serving at Foggy Bottom:
[S]pecifically, Article One, Section Six, also known as the emoluments clause. (â€Emolumentsâ€ means things like salaries.) It says that no member of Congress, during the term for which he was elected, shall be named to any office â€œthe emoluments whereof shall have been increased during his term.â€ This applies, weâ€™re advised, whether the member actually voted on the raises or not.
In Clintonâ€™s case, during her current term in the Senate, which began in January 2007, cabinet salaries were increased from $186,600 to $191,300.
The language of the section itself would seem to be rather clear:
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.
Since the salary for Cabinet Secretaries was increased while Hillary Clinton was a Senator, the Emolument Clause, as it’s called, would seem to apply pretty clearly.
There is a work around, but it’s Constitutionality is dubious:
That â€œfixâ€ came in 1973, when President Nixon nominated Ohio Sen. William Saxbe (R) to be attorney general after the famed â€œSaturday Night Massacreâ€ during the Watergate scandal. Saxbe was in the Senate in 1969 when the AGâ€™s pay was raised.
Democrats in the past have inveighed against this sleight-of-hand. In the Saxbe case, 10 senators, all Democrats, voted against the ploy on constitutional grounds. Sen. Robert C. Byrd (D-W.Va.), the only one of them who remains in the Senate, said at the time that the Constitution was explicit and â€œwe should not delude the American people into thinking a way can be found around the constitutional obstacle.â€
Michael Stokes Paulson, a Law Professor who has written on the application of the Emoluments Clause in the past, says this regarding the Clinton appointment:
The Emoluments Clause of Article I, section 6 provides â€œNo 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.â€ As I understand it, President Bushâ€™s executive order from earlier this year â€œencreasedâ€ the â€œEmolumentsâ€ (salary) of the office of Secretary of State. Last I checked, Hillary Clinton was an elected Senator from New York at the time. Were she to be appointed to the civil Office of Secretary of State, she would be being appointed to an office for which â€œthe Emoluments whereof shall have been encreasedâ€ during the time for which she was elected to serve as Senator. The plain language of the Emoluments Clause would thus appear to bar her appointment â€¦ if the Constitution is taken seriously (which it more than occasionally isnâ€™t on these matters, of course).
Unless one views the Constitutionâ€™s rules as rules that may be dispensed with when inconvenient; or as not really stating rules at all (but â€œstandardsâ€ or â€œprinciplesâ€ 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 wouldnâ€™t bet on this actually preventing the appointment, however. It didnâ€™t stop Lloyd Bentsen from becoming Secretary of State [This appears to be a typographical error. Bentsen, of course, was Bill Clinton’s first Secretary of the Treasury]. But it does make an interesting first test of how serious Barack Obama will be about taking the Constitutionâ€™s actual words seriously. We know he thinks the Constitution should be viewed as authorizing judicial redistribution of wealth. But we donâ€™t know what he thinks about provisions of the Constitution that do not need to be invented, but are actually there in the document.
Paulsonâ€™s argument is certainly persuasive, and while it’s unlikely under present circumstances that any Court will entertain a lawsuit seeking to invalidate Clinton’s appoint, it’s fairly clear that if the words of the Constitution are supposed to mean what they say, then Hillary Clinton should not be Secretary of State.