Is Hillary Barred from Becoming Secretary of State?

 by Deb Cupples  |    The media and blogosphere is abuzz with questions about whether Hillary Clinton is constitutionally prohibited from accepting the position of Secretary of State in Obama's administration -- based on Article I, Section 6, which states:

"The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

"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. (Legal Information Institute)

I don't know the answer to the Clinton question, so I figured I see what other people are thinking.  Marc Ambinder's interpretation:

"Essentially, you cannot take a job if the salary was increased during your current congressional term. And the salary for cabinet officials has gone up in the past year. Even if it is lowered back down, constitutional scholars say that may not be enough to fix the problem."

Here's what an MSNBC interviewee says:

"'The content of the rule here is broader than its purpose,' said Professor Michael Stokes Paulsen, a Constitutional law expert at St. Thomas School of Law in Minneapolis. 'And the rule is the rule; the purpose is not the rule. '

"'A 'fix' can rescind the salary,” he added, 'but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls.'”

Via the Volokh Conspiracy, legal scholar John O'Connor writes:

"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...."

So, let the debates begin (or "continue," I guess I should say). 

Personally, I'd like to see Hillary stay in the Senate and pursue some of her progressive domestic policies.  And yes, as Damozel pointed out, Hillary Clinton is a progressive -- despite certain media outlets' apparent lack of familiarity with Sen. Clinton's record.

Hillary doesn't have much seniority, but between the presidential bid and her personal wealth, I suspect that she now has considerable power in the Senate: thus, the ability to help make some important policy changes.

But the decision is not mine to make.  Memeorandum has commentary.

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Comments

[Qalam96]

There is an obvious precedent. The way this Constitutional provision has been applied in the past is explained on a .gov site:

In 1909, after having increased the salary of the Secretary of
State,(459) Congress reduced it to the former figure so that a Member of the Senate at the time the increase was voted would be eligible for that office.(460)

459 34 Stat. 948 (1907).
460 35 Stat. 626 (1909). Congress followed this precedent when the President wished to appoint a Senator as Attorney General and the salary had been increased pursuant to a process under which Congress did not need to vote to approve but could vote to disapprove. The salary was temporarily reduced to its previous level. 87 Stat. 697 (1975). See also 89 Stat. 1108 (1975) (reducing the salary of a member of the Federal Maritime Commission in order to qualify a Representative).

http://www.gpoaccess.gov/constitution/pdf2002/011.pdf

[Buck Naked Politics]

Hi Qalam96,

I've read that in several places -- yet people are still debating whether that "fix" is good enough.

I guess we'll find out in time.

[Carlos Navarro]

The Constitutional snag that would bar Hillary Clinton from becoming Secretary of State would be simple to fix: Have Hillary take on the job pro bono--for the good of America--and then let the Wall Street moguls, Chinese generals, Saudi princes, international bankers, etc. who own her and husband Bill cover the family multi-million dollar living expenses, as they've been doing for the past 35 years.

[Jack Handy]

It's irrelevant what pay she would take. The emoluments were raised in the last year thereby ending all discussion. The "Saxbe Fix" was unconstitutional, it just wasn't challenged.

Do we want to live in a country where the Federal Government is required to live within the scope that the people set for it, or not? It's a pretty cut-and-dry question.

[E. Garcia-Thurman]

Art. I Section 6 (2) addresses positions created during the term (s) of a Senator or Representative and the salary increases of those positions created during that same time period.
The position of Sec. of State was created in 1789 Under President George Washington, therefore, Art. I, Section 6 (2) does not prohibit her from being Secretary of State, 2008-2012.
Look to the language of the Article "or Emoluments whereof shall have been encreased during such time:" Whereof means "of what", or "of which", or "of whom", thus the Article refers to the increase of salary of positions created during the Congressional term of the Senator or Representative being considered. Accordingly, Senator Hillary Rodham Clinton is Constitutionally eligible to be our Secretary of State.

[Deb Cupples (Buck Naked Politics)]

HI E.,

Thanks for sharing your interp. People will be debating this one for some time to come.

Me, I have no clue what the right answer is, but I can't wait to see how the question ends up being settled.

[Jack Handy]

E., you are incorrect.

"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..."

"which shall have been created OR the emoluments whereof shall have been increased"

If a new position is created during a senator's term, that senator is not eligible. If the emoluments (pay) for a position is increased during a senator's term, that senator is not eligible.

Clinton is not eligible.