In regards to the constitutionality of Senator Hillary Clinton becoming secretary of state, people on the left, I think, might be quick to dismiss this case as silly and simply politically-driven, and people on the right might be quick to dismiss this case because it would widely be viewed as politically driven if they (other Senators charged with confirming Clinton) challenged her nomination based on the constitutionality of it (not to mention having a past lack of concern with the Bush Administration’s, shall we say, cavalier attitude to certain parts of the Constitution).

For a recap, here’s Article I, Section 6, Paragraph 2 of the U.S. Constitution:

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

So, no senator or representative can be appointed to a civil office (e.g. a cabinet position) during their current Congressional term if that office received a pay increase during their term in Congress.   As I wrote last month, the Office of the Secretary of State received a pay raise this year, during Senator Clinton’s current Senate term.   Thus, according to Article I, Section 6, she is ineligible.

Congress, however, has dealt with this problem before in what has been called “the Saxbe Fix.”   President Nixon appointed Ohio Senator William Saxbe to be attorney general, but the office received a pay increase while he was serving his Senate term.   In response, Congress lowered his pay to the level before he began his term.   This again happened in 1993 when President Clinton appointed Texas Senator Lloyd Bentsen to be secretary of the treasury.   This past Wednesday, Congress took up the issue again and passed S.J. 46, a joint resolution lowering the salary of the secretary of state to the January 2007 level before Senator Clinton was sworn in to her current Senate term.   Here’s the text of the resolution, now in President Bush’s hands:

  • (a) In General- The compensation and other emoluments attached to the office of Secretary of State shall be those in effect January 1, 2007, notwithstanding any increase in such compensation or emoluments after that date under any provision of law, or provision which has the force and effect of law, that is enacted or becomes effective during the period beginning at noon of January 3, 2007, and ending at noon of January 3, 2013.
  • (b) Civil Action and Appeal-
    • (1) JURISDICTION- Any person aggrieved by an action of the Secretary of State may bring a civil action in the United States District Court for the District of Columbia to contest the constitutionality of the appointment and continuance in office of the Secretary of State on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution. The United States District Court for the District of Columbia shall have exclusive jurisdiction over such a civil action, without regard to the sum or value of the matter in controversy.
    • (2) THREE JUDGE PANEL- Any claim challenging the constitutionality of the appointment and continuance in office of the Secretary of State on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution, in an action brought under paragraph (1) shall be heard and determined by a panel of three judges in accordance with section 2284 of title 28, United States Code. It shall be the duty of the district court to advance on the docket and to expedite the disposition of any matter brought under this subsection.
    • (3) APPEAL-
      • (A) DIRECT APPEAL TO SUPREME COURT- An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order upon the validity of the appointment and continuance in office of the Secretary of State under article I, section 6, clause 2, of the Constitution, entered in any action brought under this subsection. Any such appeal shall be taken by a notice of appeal filed within 20 days after such judgment, decree, or order is entered.
      • (B) JURISDICTION- The Supreme Court shall, if it has not previously ruled on the question presented by an appeal taken under subparagraph (A), accept jurisdiction over the appeal, advance the appeal on the docket, and expedite the appeal.
  • (c) Effective Date- This joint resolution shall take effect at 12:00 p.m. on January 20, 2009.

To my point about people on the left blowing this situation off, Greg Sargent at TPM Election Central, a branch of left-leaning Talking Points Memo, had this to say last week:

Is Hillary really Constitutionally ineligible to be Obama’s Secretary of State, as some right-wingers are claiming?

Well, as I wrote here and last month, yes, she really is constitutionally ineligible, but I’m hardly a right-winger.   And he called the Emoluments Clause (Article I, Section VI) a “frivolous legal technicality.”   So I guess that would make the Constitution is a frivolous legal document as well?

For people on the left, complaining about the current president violating the Constitution while giving the president-elect a pass seems to make the former moot, no?   They’d argue that the former’s violations were detrimental to the rule of law, separation of powers, etc., but that the latter’s violation was okay because nobody got hurt from it and you’re willing to look the other way?

I’m not saying Senator Clinton shouldn’t be secretary of state.   Although I’m no fan of the Clintons, she’s an ambitious, smart person and has strong connections with and a strong rapport amongst world leaders.   But as I wrote last month, I’m fairly certain no one could argue Senator Clinton is receiving this appointment out of some corrupt practice, which the Emoluments Clause was to protect against.   Nor can anyone argue she’s taking this office for the money.   The Saxbe Fix ought to be enough to get her by the Emoluments Clause.

But the Saxbe Fix isn’t enough for the conservative no-fans-of-the-Clintons Judicial Watch.   Manu Raju at Politico reports Judicial Watch

is considering litigation to prevent Hillary Clinton from becoming the next Secretary of State, saying Congress’ action Wednesday to clear a legal hurdle for her nomination runs counter to the Constitution.

I’m not sure what standing they would have to base their case on before the appointment and confirmation, but after is a different story.   Eugene Volokh quotes Michael Stokes Paulsen’s 1994 Is Lloyd Bentsen Unconstitutional? article:

A person adversely affected by a Treasury Department regulation promulgated by Secretary Bentsen say, for example, new Treasury or IRS regulations implementing President Clinton’s tax hikes would have standing to sue to have such regulations overturned on the ground that the Secretary of the Treasury was illegally appointed.

Likewise, someone could use this argument against a Secretary Clinton.   And I find it interesting that Congress built in a “Civil Action and Appeal” section to the joint resolution.

But before someone could bring a case against her appointment, she has to be appointed, and this week Congress cleared the way for said action.   We’ll see what comes next.   Again, though, this side-stepping of the Constitution is dangerous.   Adhere to the document or take the necessary steps to change it.   There shouldn’t be some dubiously-questionable middle ground like the Saxbe Fix.