Could Hillary Clinton Be Ineligible To Join The Cabinet?

The New York Times reports on the growing concern among some Senate Democrats that Clinton could be deemed ineligible for a cabinet post:

Senate Democrats scrambled Tuesday night 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.

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. By the end of the day, Senator Harry M. Reid of Nevada, the Democratic majority leader, was consulting with Republican colleagues in hopes of putting together a bill to address the issue.

The Emoluments Clause of the U.S. Constitution states that:

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.

The New Republic's Plank blog recently looked at the case for applying the rule to Clinton:

As it happens, the secretary of state's salary was increased by executive order this past January, which would seem to clearly disqualify her from the job. The relevant debate here is whether the so-called "Saxbe fix" (named after Richard Nixon's last attorney general, former Sen. William Saxbe of Ohio, who ran into the same difficulty Clinton is facing now) would rectify the problem: couldn't the salary just be lowered to where it was prior to the beginning of Senator Clinton's current term?

The answer hinges on whether the phrase "have been increased during such time" refers to a net increase over the period of time in question, or to any individual instance of an increase. If it's the latter--which, according to the two Emoluments Clause experts (isn't legal academia wonderful?) quoted at length by Professor Volokh, is the more reasonable reading of the clause--then Clinton would be ineligible to serve as secretary of state until 2012 and nothing could be done about it.

Comments

[Peter007]

"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."

Someone told me that there was a question about this on the Washington DC bar exam in 1973. . Hillary flunked that exam. I wonder if she got this question right?

[Yermammy]

AAAAAAAAAAAAaaaaaaaaaaaaahhhhhhhhhhHHHHHHH! :) Now, how sweeeeet is that? LOL!

[cjgnew]

As a law student, this is a fascinating question for me. Having proven to an experienced judge that a petitioner in Missouri is not restricted to any number of amendments to his original petition until the opposing party has duly served an answer to the petitioner's petition, I am aware that even the best attorneys can be wrong. So, it's possible that that little detail might have been overlooked in the vetting process. After all, President-elect Obama cannot possibly vet everyone all by himself. But I think, in the worst case scenario, Mrs. Clinton would be more than willing to return not only the salary increase but her entire senate salary if necessary. Therefore, I see that impediment as just a formality.

[Peter007]

Won't that be like getting caught going 70 in a 55 mph zone and then asking the judge if you could be allowed to drive that stretch of the road again, this time only going 55. Ya know, a redo.

[Yermammy]

Peachy! Now, if she'd just pay off all the caterers she left hanging and her massive campaign debt she run up, foolishly pursuing her dreams of being Queen of the Universe, everything will be just Dandy! Yippee! LOL. This ego, too big to berth in the Aerodrome, is a big drag to getting anything done. Let her go back to New York! I don't like New York anyway. :)

[cjgnew]

I am sure she will eventually pay these outstanding debts. What she is hoping to do is have her supporters, for whom she believes she was fighting for, cover most of those expenses through donations and other fundraising efforts either by herself or the Democratic Party. If she were to pay those expenses out of her own pockets right away, her supporters would then have no incentives to donate to her cause in order to retire those outstanding debts. So, it's not that she doesn't intend to pay. Her goal is to reduce the negative effects of her campaign being in the red to a strict minimum on her personal finances. If my thinking is right and she hopes to run again in 2016, she'll eventually pay out of her own pockets any remaining debts. Since her and Bill, based on their past incomes, are likely to be in the 50% bracket tax-wise, those vendors shouldn't worry too much about not being able to collect their money (I know some of them are hurting as a result, and I've been there). For HRC and BC can simply declare those expenses as a bad debt and spread this total bad debt over a three-year period to reduce their taxes, which would reduce their net loss quite considerably. Other than delaying payment intentionally, there's no reason to lambast her over this.

[Citizen-Jane]

I thought people like lawyers couldn't serve in the senate because of the esquire thing. Also once she if she hadn't all ready resigns from the senate. How does that prevent her from serving as SoS?
Also what about the whole amendment to the constitution thing? Admendments. You know the thing that republicans don't seem to count or know or even get. Well, except for holy 2nd amendment of course. I'm sure that this will be worked out. Too bad for you repugs.

[CharlieD]

It makes you wonder how many other articles of the Constitution will be erased in the next 4 years....remember folks, this is YOUR Constitution that is being disregarded. Pelosi, Obama, and Reid want to get rid of the first two articles and now this....It's going to be a painful time for all of us.

[Yermammy]

I'm not so sure of your leanings. I will say that with all the statists surrounding Barack now, he'll have a heck of a job getting anything progressive done. But the more I think about it, Nah, you're probably just a trollbot. You didn't mention how bad Hillary is (that's what tipped me off :)

[LauraD]

Wow. There's some irony for you - after Bush wiped his a.s.s. with the Constitution for 8 years, you wanna complain now over a clause that is so vague and ambiguous that lawyers cringe? Incredible. A little lesson for you, you clearly need it:

In it's current state, the clause quite obviously needs some clarification. It doesn't say what the circumstances of the clause are - ie, it's very obviously meant to prevent you for helping yourself with your own power, so if you have nothing to do with the position creation or raise, are you still subject? It doesn't state whether it refers to a net increase or any increase at all - that's pretty vital stuff, as the entire meaning of the clause hinges on that tidbit. It doesn't take into account any type of economic change, even inflation - ie, salaries increase over time...is a Congressman to be punished for having the nerve to serve his country for a long enough period of time to see salaries go up? It doesn't mention what level of position is applicable - ie, the President's salary went from $200,000 to $400,000 in 2001...so John McCain wouldn't have been eligible to be President if you read this clause as written, as you seem to be suggesting. That would have gone over really well if he had won, huh?

Clarifying what the founding fathers meant is not "erasing" a Constitutional article. It's such a shame on education that you think it is.

[Treasonous1]

Yes, the OP is clearly blind to what has gone on teh past 8 years, but that is exactly the reason it is so important that we begin teh next 4 with close adherence to teh constitution even on what we may deem as relatively minor issues. It may very well be that just reducing the sos sallary to where it was before hillary got to the senate solves this, as that is a line taken in teh past though not ever addreseed by the SC. It is unclear who woudl have standing as one typically has to show specific damage to the individual or group and not just say you're doing it to uphold the Constitution (a practice I disagree with), but the bottom line is this will be essentially solved with the lowering of the sallry, but if that is not done that her appoinment would clearly be unconstitutional.

That the administration did not come out and mention this issue before the nomination from both a PR and practicall standpoint is distrurbing, but even more so is the reaction, or rather the lack thereof, from those that were righlty concerned about Bush's treatment of teh constitution for the past 8 year. Now that we have gained power it is more important than ever that we set the proper example and adhere even to such "minor" clauses whether we like them or not. Anything else and all our outrage at the past administration becomes a bit of a joke.

[LauraD]

Actually....President isn't an appointed position.

But Vice-President is. And that salary went up as well at the same time.

BTW, Obama, Pelosi, and Reid want to deny Congress legislative power and and deny the President executive power? That's what the 1st and 2nd articles outline (and 3rd) - what powers the branches of government have.

I'm sure you meant the 1st and 2nd AMENDMENTS, because that's what people who know nothing say about Obama...Fairness Doctrine, which he doesn't support, and "he'll take our guns away" which he also doesn't support. But that's not what you said. Provide a link that describes how these people intend to change the responsibilities of the branches of government, please. Thanks.

[beck162]

The Vice Presidency is not an appointed position. His name was on the ballot and people chose him...

[lostinNJ1]

Don't know if anyone has seen this yet. According to TPM, Senate & House will support/write legislation addressing this issue:

This isn't terribly surprising, but it's still worth a quick note: Speaker Nancy Pelosi's office is confirming that she'll support Congressional efforts to get Hillary past the legal hurdle that the wingnuts have thrown down between her and the Secretary of State gig.

As I noted below, the Senate leadership is working to craft legislation that will make it possible for her to take the post despite a Constitutional clause saying that members of Congress are ineligible to take an appointed post if the salary for the post in question has increased while the member was in elected office.

The Senate's efforts, which would cut the Secretary of State's salary back to what it was when Hillary was reelected to her current term, come in response to a declaration yesterday by the winger group Judicial Watch that the Constitution blocks her from serving.

Now Pelosi's office is confirming that the House will back the Senate's efforts. "There is precedent for how to address this issue and Congress will act if necessary," Pelosi spokesperson Brendan Daly tells us. "Speaker Pelosi looks forward to working with Hillary Clinton as Secretary of State."

So it's only a matter of when, not if, Congress will dispense with this roadblock.

http://tpmelectioncentral.talkingpointsmemo.com/2008/12/pelosi_will_support_efforts_to.php

[Peter007]

Yes, I've seen the legislation. It says the year 2008 is really the year 2010. and the word Senator really means fisherman.

"When I use a word it means what I want it to mean. When you use a word it can mean what you want it to mean. " Lewis Caroll

[Yermammy]

It truly is Hillary in Wonderland in here. LOL. She's pretty good though, she got 18 million suckers to vote for her.

[Yermammy]

Typical. One DINO scratching the other's back. The rethugs label the Limousine Liberal Nancy as a Leftist and you gullible "Democrats" eat it up. If Nancy really served OUR Progressive agenda, we would have stopped funding this illegal war years ago, not to mention taking Impeachment "off the table". So, go on cheerleading the fake Democrats in the party. You'll be choking on the "bipartisanship" soon enough. Watch :)

[mergina]

YOU WISH all you Hillary haters.

[Yermammy]

I'm afraid you're mistaken. It's not a matter of hating her, it's merely of a matter of KNOWING her. :)

[ignorantwillyharper]

That's right, poor old Vince Foster knew her just a little to well...and we all know where he is today.

[thekobraah]

I TOTALLY agree with you. People are so pathetic to hate on Hillary like they do. Makes me sick to my freakin stomach. GET A LIFE PEOPLE!

[Grunty1]

I've been told that I'm a Hillary Hater, but this reason isn't going anyways.

[Peter007]

Yes, We have to keep reminding people about the our proposal to lower gasoline taxes so we can reduce the total cost of gasoline. Americans are paying TOO much for gas. We need to lower the gas tax. !

[RicksterInGulfport]

The clause reads 'he' and 'his' - Hillary is a HER.

[ignorantwillyharper]

So we're told.

[Yermammy]

Now that's funny! Not to her probably (but, what is?)

[Nestor92]

Oh NOW the Republicans read the U.S. Constitution.
They forgot to for the past 6 years that thay were in charge.

[meede]

Whoever wrote & posted this article should do their own homework & research and write a complete article -- I.d.i.o.t.

[meede]

People, quit getting your knickers in a knot. This is a non-issue. Clinton will be SOS. Firstly, Judicial Watch has no standing to bring a lawsuit. They think themselves important -- they're not. Secondly, this is not the first time this has been talked about. It's been the subject of previous Huff articles. Thirdly, it has been dealt within past administrations. A simple law is passed to reduce the salary by what could be as small as a couple of hundred dollars. Richardson ain't gonna be SOS -- so get your heads wrapped around it. Tired of stupidity. Research. Google it.

[ChristopherLib]

Yep. This is a non issue. Welcome Hillary Clinton the next Secretary of State.

[legalclubs]

Actually they do have standing to bring the lawsuit. In fact, any citizen would have standing to challenge an unconstitutional appointment. However, it appears that if they filed the case would just be laughed out of court as there already is a precedent (the Nixon case referred to in the article) and the solution of reducing the salary so that there is no increase clearly meets the intended purpose and intent of the Constitution.

[lvdragonlady]

Though, not a fan of HRC, this article mentioned a couple of things that may or may not be relevent.
(1) Salary was increased by executive order, which would impy that the Senate and House did not vote on it.
(2) The increase was done in January, while HRC was campaigning and not actively sitting in the Senate.

[brizzle]

Actually, you're wrong on both counts. She WAS Senator of New York when the SoS salary was raised...so the executive order doesn't matter, and she actually WAS in the senate, even though you think otherwise.

[luvangelHussein330]

Dear Santa,
Please make it so that HRC and her ego are not eligable forcing Richardson to fill in

[MalloMel]

Sorry, but not gonna happen :)

[Yermammy]

Now THAT'S funny! I can just imagine Hillary driving along in her Volvo, her and her ego (sitting in the other seat) safely seatbelted, cackling to high heaven. LOL! Seriously, she's bad news.

[Yermammy]

First of all, Hillary is ineligible to be a Democrat. This former "Goldwater Girl" is a neoliberal warhawk that makes moderate rethugs look weak in comparison. When Lindsay Graham, Henry Kissinger, Karl Rove and Rush Limburger think she's peachy keen, you KNOW somethings up. And it ain't nice. You twittering insects that bow at her alter, are fooling yourselves. No more dynasties.

[Old time Dem]

I hope Barack who indicated his faithfullness to the Constitution during his campaign will not seek to circumvent it over the Clintons.

That would surely leave a bad taste in everyone's mouth if he considered the Clintons above the Constitution.

[formerprosecutor]

Have you raed any of the analyses posted here? Are you not aware that Obama IS a Constitutional scholar ? or do you just hate the Clintons ? Interpreting the Constitution is not "circumventing it". I my opinion, Obama is as competetent as any other Legal Scholar to interpret the Constitution; including SCOTUS.

[luvangelHussein330]

I'm no HRC fan but the reason your above listed rethugs like her is because they know anything they say they like you and "progressives" or libreals like you will hate it, no matter what. It's all apart of thier devide an concure routine that has worked so far...obviously.

[Yermammy]

Obviously, you're no fan of spelling or punctuation, either. The only way the rethugs win is convincing you that she's just "pragmatic" and "bipartisan" and "effective" and all that other garbage. In a way, I hope she does get the post. Then, Barack is "free" of his debt and can let her fail on her own. The old "let them hang thmselves with their own rope" theory. If her ego was a rope, you could lay trans-pacific cable with it.

[jcwtts1]

Not a legal scholar but my reading of it is that this rule only deals with raises in salary or creation of positions for which the senate itself voted. The raise in salary was an Executive Order, not a law passed by the congress, which lets Clinton off the hook, as I'm sure it did for Ashcroft who became AG under bush.

J

[brizzle]

You're also wrong. Reread the constitution. It says nothing about senators VOTING...all that matters was that she was a senator at the time of the raise.

"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."

[demigod]

No one is concerned that Bush hiked the salary for Condoleeza, his friend, who has done absolutely NOTHING constructive as Secretary of State - not one single bit of progress has been made on any foreign conflict - but they will raise hell to keep Hillary out of the position on this technicality. It is obvious that HiIllary did nothing to raise her own potential salary, the point of the law. Has everyone lost their mind ?

[alenaspoppa]

Short answer? Yes. But this isn't a new development for the Repugs. They've been mindless for a long, long time. You should have seen the comments on Mary Mitchell's story in the Chicago Sun-Times yesterday --- it was linked to by Free Republic, so it was 90% tinfoil-hat-wearing droolers going on and on about how Obama will never be sworn in because he's not an American citizen and the Supreme Court is going to stop him...

Many of them seemed to think they were retaliating for all of the criticism that Bush has gotten over the past 8 years. The fact that progressives had reasons for criticizing Bush didn't matter a bit...

[BygonesGone]

I know one thing, Judicial Watch doesn't play. People aren't going to accept Obama coming in, bending the rules, when he campaigned against this exact same thing.

Watch for suits to be filed to block it, and Obama will look pretty bad, costing the taxpayers money to fight this, when he could simply pick someone else.

Judicial Watch is a respected organization that stops corruption. If the Clinton's didn't want such extensive dealing with them, then they should have acted right. Who do you think got them to display her records when she was first lady? Judicial Watch.

They filed suit against the Clinton Library, for the release of those records, and they can file suit again. There is no dispute that Hillary was a bad choice. Look at her record. Obama said she has no experience. If Judicial Watch sues, then that's it. She's out. If ANYBODY sues, she is out.

[formerprosecutor]

Judicial Watch has no standing; the suits would be dismissed.

[Simone]

Judicial Watch is not a respected organization except by right-wingers.

In 2002, Judicial Watch received $1.1 million from The Carthage Foundation and a further $400,000 from the Sarah Scaife Foundation. Both foundations are managed by Richard Mellon Scaife. The year before the Scaife Foundation gave $1.35 million and Carthage $500,000.

In all, between 1997 and 2002 Judicial Watch received $7,069,500 (unadjusted for inflation) in 19 grants from a handful of foundations. The bulk of this funding came from just three foundations " the Sarah Scaife Foundation, The Carthage Foundation and the John M. Olin Foundation, Inc. According to MediaTransparency, "Judicial Watch is essentially a tool of Richard Mellon Scaife, who provides almost all its funding."

[myfatherschild]

The premise of your argument should be " Obama will look bad, cost the taxpayers money." Too bad we don't accept it. Obama won't look bad, and the only ones costing the taxpayers money will be folk like you who will want to fight the PE just for the sake of fighting. Speaking of taxpayers dollars.....have you looked to your current administration lately and the cost of their unprecedented expansion of govenment that has cost the taxpayers trillions?

We are going ahead with our support for the PE and for the vision of change for the entire country that will make us a much better nation as a whole.