Obama likely to name Hillary Clinton to Cabinet. But wait! Can he?

The president-elect, no-drama Barack Obama, is expected to name his new secretary of State, all-drama Hillary Clinton, as early as tomorrow as part of the week's rollout for his national security team.

But can he?

As pointed out by a number of bloggers in recent hours, including our eloquent friend Susan over at Wake Up America, there's a clause in the U.S. Constitution (Article One, Section Six) that prohibits senators (or representatives) from taking a civil office if the legislator has voted to increase the pay for that job.

"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."

A president-elect who's a former part-time constitutional law professor, even one without his BlackBerry, presumably is aware of this prohibition, obviously designed to prevent double-dipping and raising your own salary, which is only allowed in Wall Street banks.

And Obama surely knows of its historical precedents.

And if Obama makes the appointment of his former bitter rival, she'll no doubt take office as the point person for U.S. foreign policy.

But the appointment of the loser of the Democratic presidential nomination by the winner of that nomination and of the subsequent general election wouldn't be properly Clintonian without some extra dramatic flourishes. This is likely only the beginning of such chapters.

Apparently, President Nixon ran into the same problem when he wanted to appoint Ohio's Republican Sen. William Saxbe as attorney general.

The solution back then, since dubbed the "Saxbe fix," was for Congress to pass another law (not without some outspoken dissent from Democratic senators, by the way) reducing the AG's pay so Saxbe wouldn't benefit financially from the higher salary he'd previously voted on.

Similar fixes occurred when President Jimmy Carter named Edmund Muskie secretary of State and H. Clinton's own husband Bill named Lloyd Bentsen to head Treasury.

So much for the actual money aspect and strict construction.

We're not lawyers. But we do speak English. 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."

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.

This seems more like a TV scriptwriter's trick to keep everyone hanging around through the commercials starting tomorrow.

-- Andrew Malcolm

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Photo credit: Associated Press

Comments

[jesse]

What else would you expect from a bunch of low life dems? this is just the beginning of their pushing the constitution aside. It is not obama white house he is just the clintons token house boy!

[Doug Yeager]

the ad below this article says it all:
"Cut down 42 lbs of stomach fat in - 1 month by obeying this 1 rule"

You pointed out that the rule is to avoid double-dipping, and clearly the compensation option (and resigning the elected position) address that concern, so "where is the beef?"

This issue has as much likelihood of substance as do claimed promises of weight-loss. Aren't there more important things to write about?

[Thinker]

Good morning all. I just have 1 question - what's the point of having an election that's covered by the media 24/7 for several months between 2 opposing parties if they just vote the opponent into Congress upon winning an election? Thanks.

[Trae Facente]

Are you kidding me? We just finished dealing with a President who might as well have "burned" the Constitution the minute he came into office. Now the media is pointing out tiny clauses that appear under the new administration? Give me a break, if it was Bush he would just do it and tell everyone "I don't care, what are you going to do about it?" Obviously there is no other news to write about. What a joke!

[JDL]

It seems to me that while such a thing might violate the letter of the law, it is indeed well within the spirit. The intention is to prevent an official from benefiting financially as a result of their vote, and so long as that criterion is met, I'm not going to get particularly upset about this.

[Jonny H.]

Why would anyone in the U.S. start caring about the constitution now? It's been disregarded for decades when our rulers find it inconvenient.

[Walt]

It is obvious (to me) that the Constitution does NOT apply to Hillary.
The Constitution specifically says "... HE ..."
We all know that Hillary is a SHE :)

[John Munroe]

"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 operative word here is "he". Hillary is most decidedly a "she"....

[D Burman]

Andrew,
Isn't this why there is our Court Systems? If the Letter of the Law was all that there was, we wouldn't need the Courts and the lawyers that are currently in place. Something also mentioned in our Constitution.

Sometimes, as You pointed out, it is worthwhile looking at the intent of the law rather than the the Letter of the Law.
As you put it, it is "Obviously designed to prevent double-dipping, and raising your own salary"
So, if you eliminate Double-Dipping, as previous Presidents have done, then not only have you eliminated the real issue, but there is already precident for doing so.

Even the Constitution is subject to interpratation. Look at the most recent ruling on the 2nd Amendment.

[JOe]

Who cares lol not like the every day American spends their days thinking ---hummm can this happen if a congressman or Senator voted for pay increase in the job they are being offered and dose the budget add up to the numbers for the year end balance........aaaaaaaaaaaaaaaaaaaaaaaaaaa I don't think so please stop trying to use rules and laws as a way to live and just live.

[Beltway Greg]

Let Hillary and her troops do for State what they did for her campaign. With Hillary at the helm you'll need to hire a "Special Assistant for Creativity" to give her what she lacks.
If she is appointed hope she comes alone and doesn't bring the good folks from Hillaryland. Obama should really just leave her in the senate. Too much drama from this mama.

[Alyson]

Yeah, you're forgetting a few more recent appointments, who were serving in the House and Senate when they were nominated.

Norm Mineta -- Democratic Congressman from CA, was Dubya's Sec of Transportation.

Senator William Cohen (R-ME) was Clinton's SecDef, also nominated while still a Senator.

Your argument that there may be problems giving Sec State to Hillary just don't hold water.

[Paul West]

Where is the change? We did not elect you for 4 more years of Clinton and Clinton's old cabnit Members. Get origional and give us the change we voted for. Step up man.

[Dave Delany]

As a lawyer from a traditional law school, it would be presumptuous to assume Obama read the Constitution. Most Con Law courses never get past the 14th Amendment.

[Joe M. Omma]

Minister Obama is not bound bt the Constitution. The Constitution was designed to prevent lesser men from damaging the People.
Minister Obama shall lead based on His Inspirations and visons alone.

[Carlos Navarro]

The solution to that little Constitutional snag would be simple enough: Have Hillary take on the job pro bono--for the good of America--and then let the Wall Street moguls, Chinese generals, Saudi princes, international bankers, etc. who own her and husband Bill cover the family multi-million dollar living expenses, as they've been doing for the past 35 years.

[Response]

It works if you consider the net effect on pay.

Does "have been increased during such time" mean a single instance where the pay increased, or if pay has increased during the entire term? The inclusion of "been" instead of simply saying "have increased," seems to refer to a single instance, but that might just be a result of parsing the language with a modern sense of English.

Ultimately, if someone's pay was increased the first of six years, but reduced each of the following years so that his pay is below that at which he was hired, I think you would be hard pressed to convince him his pay has been increased during that 6 year period.

[Richard Lowrey]

Politicians just write the laws, it doesn't necessarily mean they obey them.

[NRA]

funny how the Dems make the wording of the 2nd Amendment so vague; and yet this clause is now vague to their benefit. It is clear; she cannot be the Secretary of State.
Pick someone else....

[Ian]

Besides the obvious intent of the Constitution in this case, you may want to think twice about taking things too literally. If we take the section as written, then it says 'he' not 'he or she'. Perhaps our founding fathers never even imagined a woman in office and saw no need for such a possibility.

[just wondering]

Wow - isn't it great to actually talk about the constitution! I am glad that it is in vogue again ... for a while I felt it was missing. Maybe it was hidden behind an invisibility cloak by Harry Potter. That said, it would be great to have them flat out speak to this issue to remind Americans that indeed there is a constitution - though a bit of an absentee landlord suddenly surfacing when opportunity knocks.

[AML]

The spirit of the law has one seeming caveat; that the office holder not benefit from voting for more pay. If Hillary agrees to take the pay offered before she joined the Senate, there are no damages.

[dusko pavlovic]

I am not a lawyer either, but most of us understand that the ideas of the Constitution usually go a little bit beyond these "flat out" interpretations. There is something called "intent". The intent of this article was surely not to ban someone from an office because they voted to increase someone else's salary by $48.37. The intent was to prevent fraud: in this case, the fraud would be that someone purposely prepares a lucrative executive post while in the legislative branch, and then changes the branch and takes that post for themselves.

To assure that Hillary did not purposely vote to increase the Emoluments of Secy of State because she planned all this time to become Secy of State under Obama, a little bit of common sense should suffice. For those who, on the contrary, have enough imagination to think that Hillary might be this really powerful planner, reverting the increased Emoluments should also suffice.

I guess the third group are those who want to put their dislike of Hillary on some flat out constitutional grounds. Well good luck with that.

[madisonhack]

My guess is that Obama will NOT give Hillary the job. I believe his intent was to unify the Party, but not if there is a Constitutional issue surrounding the appointment. He's too smart to get caught in a gotcha like that. Only guessing...

[madisonhack]

My guess is that Obama will NOT give Hillary the job. I believe his intent was to unify the Party, but not if there is a Constitutional issue surrounding the appointment. He's too smart to get caught in a gotcha like that. Only guessing...