01/02/2009 05:12 am ET Updated May 25, 2011

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.