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Is Hillary Ineligible To Be Secretary of State ?

by @ 2:05 pm on November 23, 2008. Filed under Barack Obama, Hillary Clinton, Politics, Transition Issues

The answer may be yes, depending on how you read a rather obscure part of the Constitution:

[S]pecifically, Article One, Section Six, also known as the emoluments clause. (“Emoluments” means things like salaries.) It says that no member of Congress, during the term for which he was elected, shall be named to any office “the emoluments whereof shall have been increased during his term.” This applies, we’re advised, whether the member actually voted on the raises or not.

In Clinton’s case, during her current term in the Senate, which began in January 2007, cabinet salaries were increased from $186,600 to $191,300.

Here’s the full text of the section in question:

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.

Apparently, there is a way around this, if Obama and Hillary want to follow in the footsteps of the one Republican President Democrats may despise more than George W. Bush:

That “fix” came in 1973, when President Nixon nominated Ohio Sen. William Saxbe (R) to be attorney general after the famed “Saturday Night Massacre” during the Watergate scandal. Saxbe was in the Senate in 1969 when the AG’s pay was raised.

(…)

Democrats in the past have inveighed against this sleight-of-hand. In the Saxbe case, 10 senators, all Democrats, voted against the ploy on constitutional grounds. Sen. Robert C. Byrd (D-W.Va.), the only one of them who remains in the Senate, said at the time that the Constitution was explicit and “we should not delude the American people into thinking a way can be found around the constitutional obstacle.”

Could it possibly be…….

“You know, Hillary, I really wanted you to be my Secretary of State, but the Constitution says I can’t have you. Sorry.”

H/T: Kip Esquire via Twitter

Further thoughts and analysis can be found here.

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7 Responses to “Is Hillary Ineligible To Be Secretary of State ?”

  1. James Young says:

    I suppose that the easiest way to avoid this would be for Hillary to refuse the salary increase.

  2. Yea, that’s the workaround that Nixon came up with.

    Reading the Constitution literally, though, as some of us tend to do ;) , I think an argument could be made that refusing the increase is insufficient.

  3. James Young says:

    Frankly, I’d probably support an amendment to repeal this obscure subsection; it seems to be a solution in search of a problem in modernity.

    At the same time, I’d like to see a strict enforcement of the 27th Amendment.

    Nevertheless, you’re probably right. Of course, in this case, Hillary would doubtless do it for free. After all, it’s the power in which she’s interested.

  4. [...] at Below the Beltway writes- Could it possibly be…….”You know, Hillary, I really wanted you to be my [...]

  5. [...] I noted yesterday, there’s a possibility that Hillary Clinton may be Constitutionally ineligible to serve as [...]

  6. Nick Bourbaki says:

    James Young:
    On your first comment: This is the work around that Nixon employed, but the Reagan administration revisited this method, and found that it was an unconstitutional overreach (they have a good discussion of this over at Volokh).

    As to your second comment: The clause serves a very specific and important purpose. It keeps legislators from inflating a positions salary or creating a position altogether, and then occupying that position.

  7. [...] looks like Democrats are getting ready to follow in Richard Nixon’s footsteps to get around Hillary Clinton’s Emolument’s Clause problem: CHICAGO – Senate Democrats were working Tuesday to put together legislation making it possible [...]

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