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Can Hillary Be Secretary of State? or, Pass the Emoluments, Please

By Jack M. Balkin

Hillary Clinton was elected to the Senate in 2006. A January 2008 executive order pursuant to a general cost of living adjustment statute increased the Secretary of State's salary (along with many other federal offices). January 2008 falls within the term for which Senator Clinton was elected. Her appointment to Secretary of State would also be during the time for which she was elected. The Secretary of State is a civil office under the Authority of the United States.

The Emoluments Clause (or Ineligibility Clause), Article I, § 6, cl. 2 provides:

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 . . . .

Madison's notes on the provision (June 23, 1787) are here. They do little to help Senator Clinton's cause.

If Clinton's term had ended before her appointment as Secretary of State, there would be no problem. If the COLA had occurred during her first term (from 2000 to 2006) there would also be no problem. See the discussion in this OLC memo. Similarly, if Senator Clinton were appointed to a position created after 2012, when her term expires, there would be no problem. See this OLC memo. And finally, there might not be a problem if no particular salary had been assigned to the office. See this OLC memo.

There remains the question of whether Congress could simply reduce the salary of the Secretary of State to pre-2006 levels. This is the so-called "Saxbe Fix."

The Saxbe Fix has been tried before, with some grumbling. The question is whether it should continue as a precedent when it is not consistent with the constitutional text. On this question, see the discussions here, here, and here.

For me the question boils down to whether the text is ambiguous, in which case we could offer a limiting construction consistent with its purposes, or whether it is clear and unequivocal, in which case we cannot. The purpose of the Clause is to prevent legislative corruption and the multiplication of new offices as sinecures or golden parachutes. If the language of the text is ambiguous, the use of the Saxbe Fix wouldn't seem to violate the purposes of the Clause.

But is the text ambiguous? The text says "shall have been encreased during such time [for which the Senator was elected]." The term "shall have been increased" seems to focus on whether any act increased the salary, and thus it would include cases where the salary was increased and then decreased during the Senator's term of office. Of course, this reading doesn't really serve the purposes of the Clause. Could we read the text to mean "shall have had a net increase at the time of appointment?" That would allow the Saxbe Fix.

You might argue that the Ineligibility Clause really is ambiguous because the words "shall have been increased" might only be a fancier, eighteenth century way of way of saying "shall have increased"; the latter expression would be (more) consistent with looking to the net result, rather than to whether any particular act of increasing salaries occurred. But it's worth noting that the people who wrote the text could have used "shall have increased" (it was perfectly good English at the time) and they didn't.

My guess is that the question of whether you think the clause is ambiguous or clear will turn on whether you think it creates a serious problem-- for example, you think it very important that Presidents should be able to nominate the people they think are most qualified to federal offices. That is, the consequences of an interpretation inevitably affect our judgments of clarity and ambiguity. There are limits to this flexibility, of course. I would have real problems finding the requirement of a 35 year old president ambiguous enough to look to an underlying purpose-- say, maturity. I would be hard pressed to find the age requirement sufficiently ambiguous to allow a 30 year old but very emotionally mature President.

For the reasons described above, the Ineligibility Clause seems more ambiguous than the 35 year age requirement. However, I don't think that the clause creates a serious problem, and so, if we were writing on a clean slate, I would hold that the Saxbe Fix doesn't work. But the question turns out to be far more difficult than I had initially thought. So let me conclude this post with what I think is the best argument against my position, and in favor of the constitutionality of the Saxbe Fix.

If you think that the political branches should be given some leeway in close cases, if you also think there is no overriding and very important principle that is threatened, and if you think that past precedents should generally be respected unless there are good reasons to ignore them, you should allow the Saxbe Fix. You might even quote the following language on constitutional construction:

It will not be denied, that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this. But it is conceived, that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice. An exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.

For "an immense property," substitute "the nation's foreign policy."

Full post as published by Balkinization on November 25, 2008 (boomark / email).