Some legal scholars believe appointing Clinton to State would be unconstitutional

Ron Brynaert
Published: Wednesday November 26, 2008



While the appointment of Senator Hillary Clinton to Secretary of State appears to be an all but done deal, there are some legal scholars who believe that the move would be unconstitutional.

"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," NBC's Pete Williams reports.

Article I, Section 6: "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."

An Emolument is defined as the product (as salary or fees) of an employment, The Atlantic's Matthew Berger points out.

"Essentially, you cannot take a job if the salary was increased during your current congressional term," Berger notes. "And the salary for cabinet officials has gone up in the past year. Even if it is lowered back down, constitutional scholars say that may not be enough to fix the problem."

The Washington Post notes, "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."

MSNBC adds, "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."

The Post explains that the "'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."

However, Professor Michael Stokes Paulsen, a Constitutional law expert at St. Thomas School of Law in Minneapolis, is skeptical that this 'fix' is constitutional: "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.”

"The question is whether this would be an issue at confirmation - if Clinton is nominated to the post - and who would raise it," Berger writes. "Senators traditionally grant their colleagues some deference and it could be considered politics at its worst if Republicans try to block her nomination with this argument. But senators may be loathe to vote for something scholars tell them is unconstitutional."

Berger believes that "this development may make Obama, or Clinton, think twice about the appointment."

The conservative Hot Air blog observes that "Obama would be far from the first President to run afoul of this restriction."

"Nixon appointed William Saxbe to be Attorney General under similar circumstance, while Jimmy Carter appointed Ed Muskie to the same position Hillary will fill," Ed Morrissey writes for Hot Air. "Her husband appointed Lloyd Bentsen to run Treasury in the last such instance. No one ever proposed impeachment or a disqualification for these appointments, all of whom took their offices without much controversy at all."

Morrissey concludes, "Still, the intent of the founders is clear, and not something to shrug off so lightly. They wanted to keep Congress from creating cushy sinecures for them to occupy when a friendly President took office. The attraction of power, cash, and cronyism would lead to corruption and a permanent political class that would cease answering to the electorate. The question should get asked, or Congress should amend the Constitution if no one wants to enforce that restriction any longer."