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Hillary Clinton Unconstitutional Pick for Secretary of State?

November 25, 2008

There is a legal discussion going around as to whether or not Senator Clinton is disqualified from being Secretary of State in line with the Article I, Section 6 Emoluments (Salary) 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 ….

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.

 Professor Volokh discusses this on his blog. It appears that the salary for secretary of state was raised in January 2008 which brings the Emoluments clause into play.  Professor Volokh asked John O’Connor, who wrote on the subject and this is what O’Connor replied:

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.

Professor Volokh, however, disagrees with the interpretation:

Here’s my very tentative thinking: I think the phrase “the Emoluments whereof shall have been encreased during such time” is ambiguous. It could mean “shall have been increased at least once,” or it could mean “shall have been increased on net.” If you’re thinking about buying a computer, for instance, and you ask “Has the price of this computer been increased during the last year?,” it seems to me quite possible that you would mean “Has it been increased so that it now costs more than it cost a year ago?,” rather than “Has it been increased at all, even if the price hike was entirely rolled back a month later?” In fact, the “on net” reading strikes me as more plausible than the rival reading. If that’s so, then the question is how you resolve the ambiguity, in light of

  1. the purpose of the Clause,
  2. the adjustment’s being a cost-of-living adjustment that in practice prevents a real-world decrease in pay rather than being a real-world increase (irrelevant to the purely textual analysis that would apply if the text were clear but possibly relevant if the text is ambiguous and we have to resort to determining the purpose of the Clause), and

the Saxbe fix precedent, which dates back to then-President William Howard Taft and Secretary of State Philander C. Knox and has been reinforced by President Nixon and Saxbe, President Carter and Secretary of State Edmund Muskie, and President Clinton and Secretary of the Treasury Lloyd Bentsen, though it has been dissented from during the Reagan Administration, when the Administration’s conclusion that the Saxbe fix was unconstitutional apparently helped lead to the selection of Robert Bork (and then Douglas Ginsburg and finally Anthony Kennedy) in place of Senator Orrin Hatch.

I have no recollection from law school regarding any discussion of the Emoluments Clause. It has been several years, but most of my law school discussions about Con Law centered around VAWA and federalism in modern jurisprudence.  I will definitely be doing more reading on the subject. More than a question on whether or not Senator Clinton should be Secretary of State it is an interesting topic of Constitutional law.

If anyone has a take on the subject, I’d love to hear it.

– Yossarian

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3 comments

  1. I believe in strict constructionism, and the language in Article I, Section 6 seems very clear. It would seem, since the emoluments pertaining to the position of Secretary of State have been increased during the current term of Senator Clinton, she would be ineligible, regardless if the emoluments are retracted, or if she resigns her position in the Senate. There is no clause which suggests either case would be acceptable. If anyone wishes to change this, the only acceptable method should be by Amendment, as the Constitution provides. Since Senator Obama has seen no need to provide irrefutable proof that he is eligible for the office of President, I suspect he will not be bothered by ignoring this Constitutional constraint either. It will probably be up to the Supreme Court to decide eligibility in both cases. I hope the Justices see fit to uphold the Constitution as it is written, not as some wish it to be. Obama has already stated his preference for the courts to step beyond Constitutional constraints of authority, it must not be allowed if we wish our Republic to continue as founded.

    Respectfully,

    Tom Page


  2. I doubt that Mr. Page will find the words “irrefutable proof” in the Constitution, whatever he may be laughably implying about Obama’s eligibility.

    But if anyone wants to insist on strict adherence to the constitution, arguments against Senator Clinton’s appointment to the cabinet fall apart. The article only applies “during the Time for which HE was elected”.

    Clearly the Framers are not addressing female senators.


  3. Article.1. Section.6. Paragraph 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 encreased during such time; and no Person holding any Office under the United States,

    In reading this the word “or” sticks out. It doesn’t matter whether or not the pay was raised. Read the first part of the sentence by itself “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…” The language is clear, and unambiguous. The or portion of the pay raise is secondary.



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