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Lawsuit Filed Alleging Hillary Clinton Is Ineligible To Serve As Secretary Of State

by @ 1:14 pm on January 30, 2009. Filed under Barack Obama, Hillary Clinton, Politics, U.S. Constitution

Judicial Watch, which was a thorn in the side of the Clinton Administration back in the 1990’s, has filed a lawsuit alleging that Hillary Clinton is ineligible to serve as Secretary of State:

WASHINGTON — A conservative watchdog group filed a lawsuit Thursday arguing that Hillary Rodham Clinton cannot legally serve as secretary of state, even though she was sworn in last week.

The suit is based on an obscure section of the Constitution on compensation for public officials, the emoluments clause. The clause says no member of Congress can be appointed to a government post if that job’s pay was increased during the lawmaker’s current term.

Clinton was serving in Congress when the secretary of state’s salary was raised to its current level of $191,300. So that Clinton could take the post, Congress last month lowered the salary to $186,600, the level when she began her second Senate term. A similar tactic has been used so that several other members of Congress from both parties could serve in the Cabinet.

Judicial Watch, which has pursued several suits against Clinton and other officials over the years, argues there can be no exceptions to the clause.

The group says that Hillary Clinton is “constitutionally ineligible” to be secretary of state until 2013, when her second Senate term would expire. She resigned from the Senate to take the Cabinet post.

A copy of the lawsuit can be found here, and it’s fairly straightforward.

Judicial Watch is representing a long-time State Department employee who alleges that it he would be damaged by being required to take orders, and act under the direction of, a Secretary of State who is ineligible to serve. Assuming that this is sufficient to get around the inevitable standing issues, the Constitutional argument is fairly straightforward:

  1. Article I Sec. 6,  Clause 2 of the Constitution states that a sitting Senator or Representative cannot be appointed to a civil office for which the compensation was increased during the time that they served in the legislature
  2. On three separate occasions since Hillary Clinton began serving her second term in the Senate, the salary for the Secretary of State was increased by Executive Order.
  3. Therefore, by a strict reading of the emoluments clause, Hillary Clinton cannot be Secretary of State until at least 2013.

On the other side of the argument, there is the fact that, prior to the time that she took office at Foggy Bottom, Congress instituted a so-called Saxbe Fix — lowering the salary of the Secretary of State to where it was at the beginning of Clinton’s then-current Senate term. This is the same “solution” that was used when this issue came up in the past, although the last time it was tried Senator Robert Byrd pointed out that the so-called fix didn’t fix anything. (Of course, Saxbe was a Republican, and when Hillary’s nomination came before the Senate, Byrd voted yes)

As I noted when this controversy first arose, the Constitutional argument against Clinton’s eligibility is rather clear:

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.

However, I don’t see this lawsuit going anywhere for a very simple reason:

[N]o Federal Court Judge is going to say that Barack Obama cannot have the Secretary of State of his choice.

And that goes double for any Judge on the Court of Appeals, or any Supreme Court Justice.

Perhaps I’ll be proven wrong, but I doubt it.

6 Responses to “Lawsuit Filed Alleging Hillary Clinton Is Ineligible To Serve As Secretary Of State”

  1. tfr says:

    The phrase “Strain at a gnat and swallow a camel” comes to mind.
    Really… this is the least of our Constitutional problems with current government. However, we long ago knocked over that 900 lb (he’s been growing) gorilla, threw a slip cover over him, and starting using him as a couch.

  2. tfr,

    I don’t disagree, really.

    Personally, I think that President’s should be given pretty wide latitude when it comes to cabinet appointments. If Obama wants Hillary as his Secretary of State, Eric Holder as his Attorney General, or Tim Geithner at Treasury, then I don’t think that the Senate should deny that choice for what are essentially political reasons.

    Obama won the election, and on some level he’s entitled to have the advisers he wants.

    Which is why I haven’t really gotten caught up in the uproar over Holder and Geithner among some on the right.

    The Clinton thing is different only because the Constitution is rather clear, but that just points out to me how dumb the emoluments clause really is in a modern environment.

  3. James Young says:

    I would agree with you, Doug, on the emoluments clause, and on your general principle regarding a President’s choices for Cabinet posts. That’s why I wouldn’t dispute that Hillary is probably a decent choice for SecState. Given the Saxbe precedent, I think complaints over Hillary are probably closer to “for political reasons.”

    However, I would strongly disagree with the notion that complaints about Holder and Geithner “are essentially for political reasons.” A dispute “for political reasons” assumes that the alternatives would somehow be superior to the current pick. I have no illusions about that.

    Holder helped ram through the Marc Rich pardon; Geithner is a serial tax cheat. Both should be disqualified for those reasons for the posts to which they have been appointed.

  4. Teri says:

    This lawsuit has NO Basis! She makes the same salary as Secretary of State as she did as Senator. I’m beginning to wonder if there is more to this than what the petitioners are saying. In fact, I suspect they don’t like Hillary I at all.

  5. Teri,

    The fact that she makes the same salary as she did when she was a Senator is irrelevant.

    The question is whether the salary for the position of Secretary of State increased while she was in the Senate.

    It did. Three times.

    Therefore, under a strict reading of the emoluments clause, she cannot be Secretary of State

  6. Roger says:

    This is not a dumb rule. This rule was put in place to prevent the corruption of a congress that could vote to increase the salary of a position, then accept that position. This is not “obscure.” It has only been challenged twice. The Saxbe answer solves the question of corruption, but the Constitution does not allow it. If you think judges won’t vote to deny “the Secretary of State of his choice,” you are gravely mistaken.

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