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Is ?Secretary of State Hillary Clinton? Unconstitutional? Some Say Yes

By Ashby Jones

We’ll be honest: As a third-year in law school, we signed up for that seminar on the Constitution’s Emoluments Clause not because we think it’d ever come in handy, but because it would leave us more time to play video games and watch “Saved by the Bell” reruns. But now, wow, how thankful we are.

Here’s why: a handful of Con Law scholars seem to feel that the Emoluments Clause of Article I, Sec. 6 disqualifies Hillary Clinton from serving as Secretary of State, an appointment that arrived a moment ago. (Click here for part of the discussion, courtesy of the Volokh Conspiracy.) The Emoluments Clause states:

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 . . . .

In other words (and generally speaking), if the emoluments (i.e., pay) for a certain cabinet position increase, all members of the Congress in office during that time of the increase shall be disqualified from later holding that position.

According to Volokh, the Emoluments Clause is in play because the Secretary of State got a cost-of-living adjustment in January of this year, at which time Hillary Clinton was a senator from New York. As John O’Connor, the author of an 1995 Hofstra Law Review article on the Emoluments Clause puts it: “[U]nder 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.

Couple questions then: Does it matter if the pay hike was activated not by Congress but by the President? That’s what happened here — President Bush issued an Executive Order which raised Secretary of State Condoleezza Rice’s pay. O’Connor, a partner at Steptoe & Johnson in Washington, thinks not:

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.

If you think this would have come up before, you’d be right. President Nixon was confronted with it when he wanted to appoint Senator William Saxbe to Attorney General. The solution derived, called the “Saxbe Fix,” reduced the pay level of the cabinet position back to where it was before the hike. Later, Lloyd Bentsen served as Treasury Secretary after the “Saxbe Fix” legislation reduced the salary of that office to its level immediately before Senator Bentsen’s Senate term had begun.

And is the “Saxbe Fix” unconstitutional? O’Connor, who takes a rather literal reading, thinks so: “[T]he clause’s best reading is that an act of increasing emoluments renders members of Congress ineligible for appointment [to] the office until their respective congressional terms end.”

In the exchange, Eugene Volokh, no intellectual slouch himself, throws out some arguments as to why the “Saxbe Fix” might, in fact, be legal. But University of St. Thomas law professor Michael Stokes Paulsen, who’s done some writing on the issue as well, thinks not. He writes, via Volokh:

“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.”

Full post as published by Law Blog - WSJ.com on December 01, 2008 (boomark / email).