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December 14, 2008
Hillary To Head State: Is it constitutional?
UPDATES: Please scroll down for the newest updates.
Hillary to head State: Is it constitutional?
Founding Fathers included clause that prevents Clinton appointment
By Drew Zahn
Barack Obama, it has been reported, intends to announce Sen. Hillary Clinton as his choice for secretary of state, an appointment America's Founding Fathers forbade in the U.S. Constitution.
The constitutional quandary arises from a clause that forbids members of the Senate from being appointed to civil office, such as the secretary of state, if the "emoluments," or salary and benefits, of the office were increased during the senator's term.
The second clause of Article 1, Section 6, of the Constitution reads, "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."
During Clinton's current term in the Senate, the salary for Cabinet officers was increased from $186,600 to $191,300. Since the salary is scheduled to again be raised in January 2009, not only Clinton but all sitting Senate members could be considered constitutionally ineligible to serve in Obama's Cabinet.
James Madison's notes on the debates that formed the Constitution explain the reason for the clause. Madison himself argued against "the evils" of corrupt governments where legislators created salaried positions – or increased the salary of positions – and then secured appointments to the cushy jobs they just created. Others agreed that such tactics were evident in Colonial and British government, and they wrote Article 1, Section 6 to prevent the practice.
Presidents in the past, however, have found a sometimes controversial way to skirt the clause and nonetheless fill their cabinet with constitutionally ineligible legislators.
In 1973, President Richard Nixon was able to appoint Sen. William B. Saxbe as his attorney general, despite the fact Saxbe was part of a Senate that nearly doubled Cabinet pay in 1969. Nixon convinced Congress to reduce Saxbe's pay as attorney general to its pre-1969 levels.
The sidestep, since known as the "Saxbe fix," was also used by President Taft in 1909, President Carter and President George H. W. Bush, who actually implemented the fix to enable Sen. Lloyd Bentsen to serve as treasury secretary for President Clinton's incoming administration.
The so-called "fix," however, has been criticized as perhaps honoring the spirit of the law but violating a clearly written statute of the Constitution.
In the 1973 case, the Washington Post reports, 10 senators, all Democrats, voted against Saxbe's appointment on constitutional grounds. Sen. Robert C. Byrd, D-W.Va., the only one of them who remains in the Senate, said at the time that the Constitution was explicit, and "we should not delude the American people into thinking a way can be found around the constitutional obstacle."
"The content of the rule here is broader than its purpose," Professor Michael Stokes Paulsen, a constitutional law expert at St. Thomas School of Law in Minneapolis, told MSNBC. "And the rule is the rule; the purpose is not the rule."
"A 'fix' can rescind the salary," Paulsen added, "but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls."
And at least one administration, that of President Ronald Reagan, chose to avoid the controversy of the Saxbe fix by striking Sen. Orrin Hatch from a short list of potential Supreme Court nominees because of Hatch's ineligibility under Article 1, Section 6.
While questions remain about the constitutionality of the Saxbe fix in Clinton's case, some bloggers – such as Professor Eugene Volokh of the UCLA School of Law and Jack M. Balkin, professor of constitutional law at Yale – have pointed out that during her term of office, Clinton did not actually vote on an increase of Cabinet salaries. A 2008 executive order from President Bush created the increase, based on cost of living adjustments, leading some to argue that appointing Clinton doesn't violate the spirit of the law in Article 1, Section 6.
Andrew Malcolm, whose blog is featured by the Los Angeles Times, however, believes the Constitution needs to be strictly followed.
"We're not lawyers. But we do speak English," Malcolm writes. "And to our eyes that constitutional clause doesn't say anything about getting around the provision by reducing or not benefiting from the increase of said 'Emoluments.'"
Malcolm continues, "It flat-out prohibits taking the civil office if the pay has been increased during the would-be appointee's elected term. Period. Which it has."
Wild Thing's comment........
Once again Barack Hussein Obama pushes the envelope of Constitutional Law. We shall have an unconstitutional and an undocumented worker as president and an unconstitutionally appointed Sec of State.
....Thank you Mark for sending this to me.
UPDATES:
Sen. Hillary Rodham Clinton would make about $4,700 less as secretary of state than her predecessor, Condoleezza Rice.
Congress late Wednesday ( Dec. 10th) lowered the salary for the nation's top diplomat to keep Clinton's nomination from running afoul of the Constitution.
An obscure section on compensation for public officials, the Emoluments Clause, says that no member of Congress can be appointed to a government post if that job's pay was increased during the lawmaker's current term.
UPDATES:
Ineligibility Clause of Constitution Prohibits Clinton Appointment
Judicial Watch, 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.
Now let me explain what this is all about.
According to the "Emoluments" or "Ineligibility" Clause of the United States Constitution, no member of Congress can be appointed to an office that has benefited from a salary increase during the time that Senator or Representative served in Congress. A January 2008 Executive Order signed by President Bush during Hillary Clinton's current Senate term increased the salary for Secretary of State, thereby rendering Senator Clinton ineligible for the position.
(Specifically, Article I, section 6 of the U.S. Constitution provides "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 encreased during such time." The provision is seen by most as designed by our Founding Fathers to protect against corruption.)
As The New York Times correctly points out, former President Richard Nixon did manage to circumvent this constitutional provision after appointing former Ohio Senator William Saxbe to the position of Attorney General. The Nixon administration forced legislation through Congress to reduce the salary for the position of Attorney General to the level that existed prior to Senator Saxbe's appointment. This scheme, known thereafter as "The Saxbe Fix," was also used to allow Senator Lloyd Bentsen to assume the position of Treasury Secretary under President Clinton.
Still, there has hardly been a consensus on the "Saxbe Fix" at the presidential level. President Ronald Reagan reportedly did not appoint Senator Orrin Hatch to the Supreme Court because of this emolument provision and rejected the "Saxbe Fix" as a legislative remedy. Why?
Because "The Saxbe Fix," does not address the constitutional problem. This type of legislative "remedy" may reduce the salary of Secretary of State to previous levels, but it would not change the fact that the salary had been increased while Senator Clinton served in Congress. Simply put, the Constitution does not provide for a legislative remedy for the "Ineligibility Clause."
Barack Obama was wrong to appoint Hillary Clinton as his Secretary of State for a long list of reasons (some of which I referenced in last week's update). But now that we know there are constitutional barriers to Hillary's appointment, clearly Obama should select someone who is eligible for the position and save the country from a constitutional battle over her confirmation. No public official who has taken the oath to support and defend the Constitution should support this appointment.
As I wrote to you yesterday, now Hillary is attacking us. Her spokesman smeared us by calling us a "fringe group." Why? For pointing out that the U.S. Constitution - the supreme law of the land - should be followed by President-elect Barack Obama and Senator Hillary Clinton.
Harry Reid and Nancy Pelosi are now trying to do an end run around the Constitution by reducing the salary of Secretary of State to previous levels.
Reports suggest that not one United States Senator, either Republican or Democrat, will oppose this unconstitutional legerdemain when it comes to the Senate floor next week. Is there not one Senator who will stand for the Constitution? (Reid seems desperate to avoid a vote that would put each Senator on record.)
Also, let your representatives in Congress know what you think about proposed efforts to do an end run around the Constitution to help Hillary become Secretary of State. You can call Congress at (202) 244-3121.
Wild Thing's comment..........
To liberals our Constitution is a piece of toilet paper. It's a meaningless piece of paper to be interpreted "situationally dependent." After all, they believe in a "living document."
Somehow, they find worlds like “shall not be infringed” obscure and open to interpretation, but when they grossly violate the spirit of the Constitution by placing Clinton into this position they don't have a problem with it.
....Thank you Mark for sending this UPDATE to me.
Posted by Wild Thing at December 14, 2008 02:45 AM
Comments
Taft, America's worse president before Carter broke this clause of the constitution. He had the congress reduce the appointments salary to the level prior to the Senators raising it. The fix observes the letter of the Constitution but not the spirit. Given Obama associates I will not argue if he will stay away from his long term friends in other appointments.
Posted by: Avitar at December 1, 2008 02:15 PM
This is only the beginning of Obama's dismantling of the Constitution.
Posted by: Miss Chris at December 1, 2008 03:36 PM
I heard about this yesterday on a bog, and I'll bet you there won't be anything on the news. He will I think do away with our current constitution and have it re-written. We are in a sinking hole wih no lifeline.
Posted by: Old Soldier at December 1, 2008 05:18 PM
Avitar, thank you, I am expecting our Constitution to be followed. However my expecting that to happen does not mean it will.
He will either be President legally or the "illegitimate president". It is up to Obama and so far it looks like he wants to be the illegitimate president.
Posted by: Wild Thing at December 1, 2008 06:15 PM
Miss Chris, I agree it sure is.
Posted by: Wild Thing at December 1, 2008 06:18 PM
Old Soldier, good way to put it...."We are in a sinking hole wih no lifeline."
Posted by: Wild Thing at December 1, 2008 06:19 PM
I agree with Miss Chris and it is all downhill from here. Just more disrespect for law and order with selective mob rule running and ruining the country.
Posted by: Les at December 1, 2008 06:55 PM
Where is the change? The only thing I see so far in his pre inaugaral days is that he will try to change the constitution. If this is any indication it will be a dismal 4 years.
Bob A.
Posted by: Bob A. at December 1, 2008 08:14 PM
Change is "No more constitution! No more Bill of Rights! No more freedom!" because we don't deserve them because we can't handle them.
The dums don't care which law they break because no one will EVER call them on the carpet for it.
It's a big crap sandwich and we're all gonna have to eat some.
Posted by: Lynn at December 2, 2008 04:25 AM
Bob A.,yes, exactly, see that is the only real change your so right. This is like a Clinton administration with Obama at the helm.
Posted by: Wild Thing at December 2, 2008 05:17 AM
Lynn, yes that says it all!
"It's a big crap sandwich and we're all gonna have to eat some."
Posted by: Wild Thing at December 2, 2008 05:19 AM
"The liberties of our Country, the freedom of our civil constitution are worth defending at all hazards: And it is our duty to defend them against all attacks. We have receiv'd them as a fair Inheritance from our worthy Ancestors: They purchas'd them for us with toil and danger and expence of treasure and blood; and transmitted them to us with care and diligence. It will bring an everlasting mark of infamy on the present generation, enlightened as it is, if we should suffer them to be wrested from us by violence without a struggle; or be cheated out of them by the artifices of false and designing men. Of the latter we are in most danger at present: Let us therefore be aware of it. Let us contemplate our forefathers and posterity; and resolve to maintain the rights bequeath'd to us from the former, for the sake of the latter. — Instead of sitting down satisfied with the efforts we have already made, which is the wish of our enemies, the necessity of the times, more than ever, calls for our utmost circumspection, deliberation, fortitude, and perseverance. Let us remember that "if we suffer tamely a lawless attack upon our liberty, we encourage it, and involve others in our doom." It is a very serious consideration, which should deeply impress our minds, that millions yet unborn may be the miserable sharers of the event." Samuel Adams under pseudonym "Candidus." 14 October 1771
Posted by: JohnE PFC U.S. Army at December 14, 2008 05:47 AM
The fix is in for Hillary, Reed is trying to push this through the Senate, and not one Republican is going to raise one word of protest.
Technically she isn't elegible until 2012. Maybe harry can't wait to get rid of her.
Posted by: Mark at December 14, 2008 06:23 PM
First, flag burning is allowed. Now, pissing on the Constitution. Why am I not surprised?
Posted by: Les at December 14, 2008 07:33 PM
JohnE PFC U.S. Army, .....thank you.....
" Let us remember that "if we suffer tamely a lawless attack upon our liberty, we encourage it, and involve others in our doom."
Posted by: Wild Thing at December 14, 2008 07:42 PM
Mark, I had not thought of that. Yes I bet Reid is really looking forward to Hillary getting her new position.
Your right of course no Rep. will fight this or make a point of what it says in the Constitution. So shameful!!!
Posted by: Wild Thing at December 14, 2008 07:45 PM
Les, they go together don't they. So sad and it really sets us up for so many horrible things to happen.
Posted by: Wild Thing at December 14, 2008 07:47 PM
