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The Emoluments Clause Controvery Goes Mainstream

by @ 4:32 pm on November 25, 2008. Filed under Barack Obama, Hillary Clinton, Politics, U.S. Constitution

MSNBC’s First Read picks on the theory that Hillary Clinton may be Constitutionally barred from serving as Secretary of State:

If President-elect Barack Obama nominates Hillary Clinton to be secretary of state, many legal scholars believe it would be the former law professor’s first violation of the Constitution as president.

Why? Because the Constitution forbids the appointment of members of Congress to administration jobs if the salary of the job they’d take was raised while they were in Congress. (Article I, Section 6: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil office … the Emoluments whereof shall have been encreased during such time.” Emoluments meaning salaries and benefits.)

Past presidents have confronted this problem repeatedly — Taft in nominating Sen. Philander Knox to be secretary of state, Nixon in nominating Sen. William Saxbe to be attorney general, Carter in nominating Sen. Ed Muskie to be secretary of state, and Clinton in nominating Sen. Lloyd Bentsen to be treasury secretary, to name some notable examples.

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.

James Joyner is apparently among those who find the argument unpersuasive:

It seems to me that it would be absurd to apply the Clause in such a way as to exclude Clinton. Clearly, its purpose was to prevent a conflict of interest between the branches and with a specific individual, wherein the salary was raised with the express intent of rewarding the soon-to-be appointee.

Perhaps, but, as one law professor notes, that’s not exactly a sound method of Constitutional interpretation:

“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.”

Of course, as First Read points out, it’s entirely improbable that this issue would ever get before a Court:

If Obama goes ahead and nominates Clinton, it’s doubtful the courts would entertain a lawsuit from an outraged citizen. Such generalized taxpayer lawsuits are disfavored by the federal courts.

A more difficult case might come if a Secretary of State Clinton issued an order that put a specific citizen at a disadvantage. That might give rise to a lawsuit that could get some traction.

Even then, though, some legal scholars believe it would be a hard case to make.

So, in the end, this is probably an entirely academic discussion.

Except that it doesn’t.

If the words of the Constitution mean what they say, then it seems fairly clear that Hillary Clinton is Constitutionally ineligible from serving as Secretary of State. Is it a dumb rule ? Probably, just like it’s a dumb rule that someone like Arnold Schwarzenegger couldn’t serve as President of the United States merely because he was born in a foreign country. The way to deal with dumb rules, though, isn’t to ignore them, but to change them via the method that the Constitution provides.

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