It 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 for Senator Hillary Rodham Clinton to become secretary of state despite a constitutional clause that some critics argue should bar her from joining the cabinet.
The issue may seem esoteric but it generated attention Tuesday among legal scholars and bloggers arguing over whether it would be unconstitutional for Mrs. Clinton to serve as President-elect Barack Obama’s secretary of state because the salary for her new office was increased while she served in the Senate.
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This became known as the “Saxbe fix,” after it was used to facilitate President Richard M. Nixon’s appointment of Senator William Saxbe of Ohio as attorney general. It happened most recently 16 years ago when incoming President Bill Clinton made Senator Lloyd Bentsen of Texas his treasury secretary.
“It’s been dealt with each and every time,” said Jim Manley, spokesman for Mr. Reid. “We’re confident it can be dealt with this time.” Mr. Manley said it was unclear whether the measure could be passed during a lame-duck session next week. “We’re trying to work on this as quickly as possible,” he said.
Nonetheless, it looks like there might be a legal challenge to Clinton’s appointment:
Judicial Watch, a watchdog group that made a name for itself investigating the Clinton administration in the 1990s, raised the matter Tuesday with a statement asserting that Mrs. Clinton was ineligible to become secretary of state because of the so-called “Emoluments Clause” of the Constitution.
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Judicial Watch, and some legal scholars, argued that the Saxbe fix is insufficient because the constitutional clause says a senator is ineligible if the salary was raised, which it was in this case, even if it is subsequently cut again.
“There’s no getting around the Constitution’s Ineligibility Clause, so Hillary Clinton is prohibited from serving in the Cabinet until at least 2013, when her current term expires,” said Tom Fitton, president of Judicial Watch. “Barack Obama should select someone who is eligible for the position of secretary of state and save the country from a constitutional battle over Hillary Clinton’s confirmation.”
Strictly speaking, I think that Fitton is correct for the reasons stated here. However, I seriously doubt that any lawsuits challenging Clinton’s appointment are going to go anywhere. First of all, there’s the standing issue; under present Federal Court standing rules, a private citizen simply doesn’t have standing to bring lawsuits of this type, as the recent dismissal of lawsuits challenging Barack Obama’s eligibility to be President have shown us. Second, I don’t see any Federal District Court Judge anywhere issuing an opinion saying that Barack Obama can’t have the Secretary of State he wants — both because it would be considered a “political question” that courts shouldn’t deal with and because it would create a massive separation of powers problem.
Nonetheless, I found myself raising an eyebrow to this comment by a Clinton spokesperson:
Philippe Reines, a spokesman for Mrs. Clinton, said she and Mr. Obama had anticipated the issue and were prepared to resolve it. “This is a Harvard Law grad nominating a Yale Law grad here, so all parties involved have been cognizant of this issue from the outset,”
Translation — we’re smarter than you, so shut up.
