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

Speaking of news, you could have learned about this item the minute it was posted. Just go here and register free for automatic Ticket alerts to your cellphone. RSS feeds are also available here. And The Ticket's available on Amazon's Kindle too.

Photo credit: Associated Press

Comments

[doonesbury]

What bill did she vote on that raised the Sec of State's pay?

[Average American]

Aww,

Laws, rules and policy don't apply to Obama... Heck, he didn't even have to prove his U.S. citizenship to become President-Elect, which by the way is still on the docket of the Supreme Court...

What's going to happen when it is determined that Obama is actually unqualified to be President, oh yea, that never mattered anyway...

[Steve]

So this is one way to save money! Obama is hiring the cheaper SecState option, saving maybe $10K.

[hhkeller]

Dumb article since under the same theory Obama could not hold the Office of the Presidency since his pay was raised as well.

[uffdaron]

Everywhere Senator Clinton goes, she draws flys just like horse stuff. I can only surmise that Obama wanted to prevent her from pushing for a Supreme Court seat where she could permanently cripple the US and instead gave her a chance to irritate the whole world...I can't wait to see how her brand of heavy fisted liberal socialism flys in Iraq, Iran, Saudi Arabia, Russia, Japan etc. good riddance .let her live overseas.

[Greg]

Aside from the fact that a strict reading of the constitution can be interpreted as prohibiting it, the author does not give any opinion as to why the "Saxbe fix" is problematic.

[Dan]

The POTUS-Elect, knows better than most of the prohibition of appointing Clinton. He should follow the United States Constitution. The Bush administration has tarniished the very fabric of the document that has served this nation since 1789. Obama, should not stay the course.

[patricia cahill]

we do not need ro want her AT ANYLEVEL LETS GET AWAY FROM THE CLINTONS THEY HAVE NO INTENT IN THE CHANGES THAT ARE NEED---THEY HAD THEIR TURN AND SET-UP THE MESS WE ARE IT---

[Average American]

No, he cannot.

He is not even eligible to become the U.S. President as his mother gave up his U.S. citizenship when he was a child attending school in Indonesia. That country will not allow any child to attend school if they are not citizens of Indonesia only. It's all in the lawsuit that a Democrat Lawyer has before the Supreme Court right now.

[Mark Dozbaba]

OMG LA Times, give it a rest!

[Alessandro Machi]

The use of the word "his" in the final sentence would exclude Hillary Clinton. Just saying.

http://www.DailyPUMA.com

[Mark]

No, the Constitution does not provide for 'getting around' the provision by reducing the pay, but we don't really need to be Constitutional scholars to discern what the intent of the provision was: to prevent Congressional members from benefitting financially from a pay increase by subsequently taking the job for which the pay was increased. That's it. If the 'fix' is to reduce the pay back to what it was prior to the vote, then the intent of that provision is satisfied.
The Constitution could not possibly detail a 'how to' solution for every problem we will see in America... and that is why we have over 200 years of jurisprudence, to interpret the INTENT of the FF when the language itself is lacking.

[yawp]

"...for which he was elected..."

Well, as any rigid constructionist can plainly see the U.S. Constitution only intended this provision to apply to males as is clearly indicated by the use of the masculine pronoun.

Interpreting the intent otherwise would obviously be a liberal indulgence at divining new meaning from the immutable.

No self-respecting literalist, fundamentalist or constructionist would dare.

Would he? Would she?

[Peter]

The 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 starts with the wording:

"No Senator or Representative shall, during the Time for which he was elected..."

If we are all going to get stupid about this I guess I will too. The clause specifically states 'he' not 'she', so I guess the point is moot.

[jrzshor]

if she donated her salary could she have the job?

[nihil]

How about this fix:

1. Clinton resigns her seat on January 3 (111th Congress)
2. The Congress pass and Bush signs a bill creating a new position named Secretary of State for Foreign Affairs, pay $399,000/yr (less than the president). Since it is an entirely new position, the pay is not in any sense an increase in pay. Therefore, any member of Congress who voted for an increase of salary during her term for which she was elected is not barred.
If Bush does want to sign, wait until Jan 20.
3. The position does not have the same duties and authority of the present Secretary of State, which is converted into Secretary of State (for the Home Offic) which has three specific duties: (1) duties of communicating with the states, in any activity callng for the "Secretary of State" it is in fact the old position less anything having to do with communications with foreign governments,
(2) validating domestic papers, such as resignations, appointments, one of the other trivia present done by the Secretary of State.
(3) Under the law of succession established by the the constitution and Congress, stands in 4th position in succession to the president. after the (1)Vice President, (2)President Pro-tem of the Senate, and (3) Speaker of the House of Representatives. If he wishes, the President Elect may request that the Foreign Secretary be placed fifth in order of succession after the Home Secretary and before the Secretary of the Treasury. If I were advising Obama, instead of the world at large, I would it lie outside of the line ofsuccession altogether. I would want as many lives between Obama and Clinton as possible, maybe after the youngest presidential child's master of hounds.
(4) General + any other duties the President cares to assign to the Home Officeu nder the reorganization acts,
like the tea tasting board (if it still exists, otherwise, it can be created anew, although it would seem logical to put it in the Foreign Office, the natural home of striped panted morning coated tea sippers.)

[Gwen Lebec]

It is pretty clear that the intent of the law was to prevent the lawmaker from financially benefiting from their votes. Prior administrations have remained true to the intent and purpose of the law by limiting salary to incoming civil officers. Literal interpretation is silly and not consistent with the goals of the law.

[don]

Hmmmm....the Constitution says "he" and "his." Seems to me that Hillary is a "she" and "hers." Oops. Back to the drawing board! Ultimately, Congress must approve this appointment, so the final decision will be theirs (male and female, that is) and not Obama's. Doesn't sound like he will have violated the Constitution to me. He is only making the recommendation.

[Winemaster2]

Of what the country and world saw of Hillary during the primary season, she has neither any diplomatic demeanor, aptitude, skills or talent. The Madam Senator she may be but the marta hari is no bona fide material to be the US SOS.

As far as Bill Clinton, his is pushing the deal because it will benefit the SOB most. Does any body really doubt really doubt he not use the office of the SOS as the means to the end for his own uncouth deals that he has been at for the past 8 years.

Obama to tie the Clinton hands should offer Bill Clinton the job and the Democrats in the US Senate would be far better off to retain Hillary as a Senator.

The bottom line motive being that Bill Clinton for a real change does some service for the country and redeem himself to be a patriot. There is no provisions in the Constitution that forbids him to be the SOS after a two term President.

[Dave McDonald]

If, during a six-year period, the price of oil goes from $50 to $100 back down to $50, did the price of oil "increase" during that period? It's plausible to assume that "increase" is talking about a net increase, and that the price of oil did not "increase" during that time.

Given two equally plausible interpretations of a provision of the Constitution, shouldn't we interpret it in the way that's most compatible with the logic underlying its existence?

[anna paidoussi]

If adherence to the law was the reason that particular( or any) law was put in place- then you have a point.However, I believe that it was to keep someone from paving their own way to more benefits. So- reducing the salary is no smoke screen. It keeps the spirit of the law ( and the protection of the people). Brains are made for thinking....please use yours before you put pen to paper ( or fingers to keyboard).

[jhn]

"Increases" tied to inflation such as a cost of living increase are simply not really increases. They keep salaries the same, they don't raise them in real dollars.

Anyway, the Supreme Court has already ruled on an analogous matter (holding that COLA "increases" are NOT salary increases under the Constituion).

The only people pushing this theory seem to understand the law, but not the nature of money.

[hawthorn]

If this were strictly constructed, Hillary could still be a second term Secretary of State, since "the Time for which [s]he was elected" ends in 2012.

[Max Kennerly]

I disagree for two main reasons, as you can see more fully at my blog post linked above.

Focusing on your concluding paragraphs, it depends on what you mean by "English," "reducing" and "increased."

Starting with "English," as Chief Justice John Marshall wrote (while interpreting another separation of powers issue under Article I) "we must never forget that it is a constitution we are expounding." McCulloch v. Maryland, 17 U.S. 316, 407 (1819). It's not a dinner menu; everything must be interpreted in context, with an eye to the multiple balances of powers and interests reflected by the Constitution's text as well as past interpretations and future consequences.

Moving on to "reducing," there's nothing wrong with a Constitutional "fix;" indeed, there's every reason to believe that's just as the Framers, who themselves drafted a compromise document, would want. Reducing salary is also how we fixed the issues arising from this clause three times in the past, like with the "Saxbe fix," named after Nixon's last Attorney General, for whom the Congress specifically reduced his pay back to where it was prior to his term in the Senate. (You can see the notes to 5 U.S.C. 5312 littered with all three prior "Compensation and Emoluments" fixes). If Obama wanted to "fix" this situation by rescinding the COLA adjustments for the Secretary of State, that would fit within the purposes of the clause, as described below.

As for "increased," that's not nearly as clear as Malcolm believes, because of the complexities of government. Bush's Executive Order did not arbitrarily increase emoluments -- instead, the Order merely published the new numbers required on an annual basis by a statute most recently amended in 1990. See notes to 5 U.S.C. 5303. The "increase" for Constitutional purposes thus arguably occurred back in 1990; Bush did nothing more than carry the existing numbers through the method established there, hardly the same thing as a deliberate increase in salary.

As described more fully at my blog, even if you see an increase and a problem, there's nothing wrong with a "fix" in this situation and I think the Founders would have expected as much.

[John]

This is ridiculous. As you note, this has already happened at least three times - why on earth should we think that this time it's going to be impossible to appoint Clinton?