Is Clinton Barred By Constitution From Secretary of State Job?
Posted on November 26, 2008
From Marc Ambinder:
Pete Williams of NBC raised the question on MSNBC this afternoon: Is Hillary Clinton barred by the Constitution from accepting the post of secretary of state?
Article One, Section Six of the U.S. Constitution says:
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.
I have no idea if this means she can’t take the office because salary for cabinet positions was increased last year while Clinton was a Senator. I doubt anyone will seriously challenge this position on these grounds, but it may make Obama and Clinton think twice. Any constitutional scholars or lawyers out there want to weigh in on this one?
One commenter at Say Anything says this has happened before:
This is not the first time this Article has stood in the way of a cabinet appointment. In 1973, at the height of Watergate, President Richard Nixon nominated William Saxbe (R) to be Attorney General and the issue was raised because Saxbe was in the Senate in 1969 when the Attorney General’s pay was raised.
In that instance, Congress lowered the pay for the AG, allowing the appointment to proceed. Democratic Senators complained, however, and 10 senators actually voted against the transparent scheme on constitutional grounds. At the time, Sen. Robert C. Byrd deemed it was clearly unconstitutional saying we should not delude the American people into thinking a way can be found around the constitutional obstacle.
I’m sure this precedent will proceed, however it doesn’t satisfy all constitutional scholars:
The usual workaround is for Congress to lower the salary of the job back to what it was so that the nominee can take it without receiving the benefit of the pay increase that was approved while the nominee was in Congress. This maneuver, which has come to be known as “the Saxbe fix,” addresses the clear intent of the Constitution, to prevent self-dealing.
But many legal scholars believe it does not cure the Constitutional problem, because the language of Article I is so clearly an absolute prohibition: No senator or representative, period.
“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.”
Quite an interesting puzzle.
Others: Ed Morrissey
Robert Stacey McCain
John Brodigan
» Filed Under 1st Amendment, Constitution, Hillary Clinton, News
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25 Responses to “Is Clinton Barred By Constitution From Secretary of State Job?”
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It seems to me that the article is an attempt to keep people from having an additional post while a senator or rep. If she resigns the senate seat, her Time is done and she can be in the cabinet. Also, the raised fee didn’t happen at the time of the appointment, so it also doesnt’ appear to be a problem. The article seems to prevent getting *additional* offices and/or more money while serving in congress. This is a waste of time red herring.
I’ve written several posts on this over the last eleven days – here, here, here and here – developing various themes related to the issue.
Ken writes:
“It seems to me that the article is an attempt to keep people from having an additional post while a senator or rep.”
It seems to me that this reveals that you know nothing about Constitutional law.
with 300 million americans to choose from-why would take a clinton already on the payrool and give her another job.-unemployment is running out of control and u want someone to double dip,,,,,,this must be the change we have been hearing about.bush was the dumbist president-just wait i think barry will win the title hands down…………god bless america
You’re wasting a bunch of time and advancing crackpottery.
Quite.
“This is a waste of time red herring.”
Like wanting to see Obama’s real birth certificate?
It’s likely that some “fix” will be applied, the plain wording of the Constitution will be ignored, and Clinton will take the job. Since either a) no one will sue to enforce the Constitution and b) anyone who does sue will likely be told they have no standing, it will stand.
I actually think the “fix” is a reasonable way to implement the intent of the Constitutional provision. However, it’s something that should have its day in court. I firmly believe any citizen has standing to sue for enforcement of the Constitution. In fact, I firmly believe that the case in PA should not have been stopped so quickly on ridiculous standing grounds. An ordinary citizen has every right to ensure a candidate for President meets the qualifications for that office.
I also firmly believe Obama’s birth certificate is legitimate and would hold up to scrutiny, but that doesn’t take away the right of the citizenry to challenge anyone’s qualifications for the office under the Constitution, including McCain or anyone else.
My comment has nothing to do with the article but it seems pretty hypocritical that next to the link “ACLU Policy to legalize child porn” I see a big banner with advertisement of “naughty girls,” and some of them seem underage… Just pointing out…
The rationale behind the rule was a limit on executive power. In 1776, the colonies were directed by the Continental Congress to draft new constitutions.
A prevelant practice in England at the time was that the King would give appointments to members of parliment to executive posts to “buy them off” and garner support. In essence he awarded them meaningless posts that carried a salary.
The American’s drafting the post-revolutionary constitutions sought to eliminate two avenues for this type of inteference of the legislative process. First, they provided that legislators could hold no other government post to put an end to the bribery aspect. Second, they attacked the increase in salary issue to ensure that the legislators would not increase the salary of a position that the chief executive would then offer to a sitting legislator. ( in other word, the concern was that new positions would be created as financial awards for friendly legislators and that such activity would be pre-arranged.).
These proscriptions were then passed along to the US Constitution.
In the current case, Clinton did not vote on an increase of the Secretary of State’s salary with a pre-arranged agreement to be offered the post. In fact, she was the chief opponent of the Presdient elect. It would be difficult to argue that the proscription should apply to her, but nevertheless the salary should be reduced until after she resignes from the Senate. In addition, she would obviously need to resign from the Senate before she took office.
i would ask all of you to read each word pause at each “comma” stop at each “peroid” and then try to put yourself in the same thinking mind of our forefathers then you might come up with the conclusion that clinton should not sec. of state reguardless of the fix
I believe the prohibiton per the constitution does not pertain if the senator or representative resigned from his job prior to being appointed to the new cabinet job and assuming he does not have any knowledge of such future appointment by the president.
it is known that the rules for man, does not apply for hillary.
so whoever elected her to represent them just got a dose of reality. she does not care for you or for the senate
bring back the republic
Would the act of resignation technically remove the impediment to an appointment “during the Time for which he was elected.” Why wouldn’t that “Time” be the original term of office to which the person was elected (e.g., until January 2013 for Hillary)?
I appreciate you pointing out that ad. I had that ad company on auto approve. I will have to go in and manually disapprove that ad when I get home. Ads are blocked on my work computer.
I think it’s a non issue. All she has to do is resign her Senate seat before her nomination is formally submitted to the Senate for confirmation and then there’s no problem.
“Who gives a [edited]!? She will be awesome in the new position and that is what we need now. It sounds like the ban was needed at the time but it is now an outdated idea. I for one could give a [edited].
# abel”
Exactly, it’s like freedom of speech, or the rules against unreasonable search and seizure, or the prohibitions against cruel and unusual punishments; outdated and should be rescinded.
Personally I’m looking forward to a President and Congress who are perfectly willing to throw out the Constitution and rule with no limits on their power.
All hail our new Tyrannical overlords. (I’d rather not praise them, but the repercussions after they’ve taken power if I’ve badmouthed them could be difficult)
All the damage that’s been done to the Constitution during the last seven years, and people have the cohones to raise this? Forgive me if I want to puke.
Whoops, that quote was from Beezo, not abel.
And HStewart, the last 7 years? Really? So the 10th Amendment was secure for the past 50 is your claim?
And your defense is “they violated parts of the Constitution, so we get to crap on it as well”? Is that really the ground you want?
You didn’t want Bush to stop violating the Constitution to defend the Constitution, you just wanted that power for your side and not the other side?
So that’s your moral high ground; you wanted your guy to be the one violating the Constitution and damaging the law of the land for political gain… good to know where you stand.
You’re all just wasting your breath. They will do whatever they want, whenever they want, and however they want, and we will pay for it (literally and metaphorically) because we continue to willingly elect them into office without holding them accountable.
It’s our own fault. QED.
The Saxbe case, in 1973, is not the first. The precedent was established in 1903 and has NEVER been successfully challenged.
The 1903 case also involved a senator being named secretary of State. 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
Move on folks; nothing to see here.
I have read, with humor, all the clamor the last few years about how “Bush and Cheney trampled all over the constitution”. Since you folks seem to sound like you know what you are talking about, please, detail to me which articles they supposedly “trampled over”. Also, please explain why, if this was so, your liberal led congress has done nothing, your liberal led courts have done nothing, and our liberal led media has done nothing? Could it be you don’t know what you are talking about, and Bush and Cheney have been within their legal rights all the time? I tend to believe that more than your liberal ravings, with no facts. So please, it’s getting old, time to “move on”.
I will be interested in seeing how you handle it when your boy actually starts trashing the constitution. Hmm?
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.
The Saxbe fix also included a statute that if criminal defendant thought he was hurt by Saxbe being appointed U.S. attorney general, he could file a suit before a 3 judge federal panel challenging the constitutionality of the appointment. The decision could be appealed directly to the United States Supreme Court. The Saxbe appointment, and who could challenge it (standing), was the subject of a law school exam in my federal courts class. I knew of the statute, noted it, but went on to analyze the standing issue irrespective of the statute. I concluded that the issue could only be raised by a resident of the state where the senator/representative came from, because it affected the resident’s right to an honest and unbiased representative. The constitutional provision dates back to 18th century England where members of parliament would sell their vote in return for appointment to lucrative official positions. Today, the Supreme Court has cut back on standing and it would be very hard for anyone to challenge Clinton’s appointment.
Being a strict constructionist of the constitution, I see the word HE not SHE in this amendment. This clearly prevents men from taking on this position but not a woman. If I were Hillary I would not only take the job but demand that my salary not be decreased.
Maybe BHO will want to ask congress to amend the constitution to not be sexist! Note that all things presidential refer to HE!
Hillary and Bill Clinton are liars and crooks, period. Remember Bosnia? She lied
about that too. She will not be welcomed in
the middle east, having spent time there for
the purpose of female rights, which will never happen over there. Taxpayer money for
no return. She has done nothing for New York State as a Senator. During Clinton’s presidency they took useless trips to Europe for 4 hour meetings and toured for two weeks playing his Sax. Millions of our taxpayer money was spent. They are nothing but money grabers and most Americans are sick of them.
Incidently, they were pot-smoking draft doggers as well.