Emoluments: Technically, The Constitution Does Bar Hillary from Becoming SoS
David Kurtz brings up the "Emoluments clause" on the front page here, and I see I missed Greg Sargent's recent post on it at Election Central. I was reading up on this last night and found a tortured explanation of the whole thing here:
There's been talk about whether Sen. Hillary Clinton is disqualified from a position as Secretary of State by the Emoluments Clause:
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 ....
Adam Bonin's Daily Kos blog has a bit more on this, but the short version is that a Jan. 2008 executive order, promulgated pursuant to a 1990s cost of living adjustment statute, raised the salary of the Secretary of State, so the Emoluments Clause question is in play. I very recently read an article by John O'Connor on the subject, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89 (1995), so I asked him what he thought. Here's his answer (some paragraph breaks added); please note that I have some comments at the end of this post that express a somewhat different view:
It seems to me that there are two questions regarding whether the Emoluments Clause to the U.S. Constitution (Art. I, § 6, cl. 2) renders Senator Hillary Clinton constitutionally ineligible for appointment as Secretary of State: (1) whether Senator Clinton is now ineligible for appointment; and (2) if Senator Clinton is ineligible for appointment, whether that ineligibility may be cured by the so-called "Saxbe Fix," whereby the Secretary of State's salary is reduced to the salary in effect before Senator Clinton's current Senate term began.
I think it is beyond dispute that Senator Clinton is currently ineligible for appointment as secretary of State. I also believe that the better construction of the Emoluments Clause is that the "Saxbe Fix" does not remove this ineligibility.
The basic story line is this: Bush passed a cost of living increase for the Secretery of State position in 2008. Hillary was a sitting Senator at that time, and is now being appointed SoS, but the Constitution forbids this. The original intent was to prevent Senators or Representatives from creating new postions, or increasing the "Emoluments" (basically salaries) of existing positions, and then getting themselves appointed to those positions and benefiting themselves.
This has been a problem a few times in the past, and the President has in those instances lowered the salary back to what it was, in order to get around the issue. Is it constitutional? It appears not, but no one has attempted to challenge it, and most likely won't, as the President should be allowed to choose whom he or she wants in their cabinet.
This won't be an issue, except amongst the wingnuts. It does make good reading , though, and I highly recommend reading the legal rationales as well as the reader comments in the above-linked post. They appear to be from a number of lawyers and legal scholars and their debate is highly informative.
Funny thing the first person to confront this issue and resolve it was Nixon. The grand wizard of wingnuts.
December 3, 2008 2:07 PM | Reply | Permalink
"The grand wizard of wingnuts." Should that be capitalized? But seriously...it's an interesting question. I'm all for Obama having his choice for his cabinet. I'm also interested in his approach, as former professor of constitutional law and history, to this problem. Does one follow the Constitution to the letter? Or is it okay to fudge a little bit to get around some of its eccentricities? It's a slippery slope, and one that the Bush Administration was happy to slide down. Having just endured eight years of trampling on the Constitution, do we look the other way as it is done again?
December 3, 2008 2:19 PM | Reply | Permalink
Actually, the first instance of it was William H. Taft's appointment of Philander C. Knox to be his Secretary of State. If you download the John O'Connor article (PDF 7.5mb). The history of its use begins on page 123.
An interesting fact about the Saxbe nomination, amusingly not mentioned by the Federalist Society Member in good standing, Professor Volokh, is that the then acting Attorney General, none other than Robert Bork, signed off on it as being completely Constitutional. Also, not mentioned by Professor V. is that during the Clinton Administration, Bob Dole, and Orrin Hatch felt that the Emoluments clause was not an obstacle for a possible appointment of George Mitchell to the Supreme Court.
December 3, 2008 4:30 PM | Reply | Permalink
Common sense would say that there shouldn't be a problem. I'm surprised that some kind of fix hasn't been made to ammend the ambiguity of the emoulents clause, as obviously there's a need to clarify it.
December 3, 2008 4:54 PM | Reply | Permalink
The Constitution, like the law, is not violated in any way by using loopholes. Loopholes are part of the law and part of the Constitution. If the salary is set at the level that it was when Senator Clinton took office, there is no violation whatsoever.
December 3, 2008 2:24 PM | Reply | Permalink
Yeah, that's the way I see it, too. If the original intent was to prevent congressmen from gaming the system, then removing the financial gain from the position seems to take care of that.
December 3, 2008 2:31 PM | Reply | Permalink
Technically, the Emoluments whereof have been encreased during Hillary's time in the Senate, so to say it's not unconstitutional requires that we decide based on an intent which is not specifically written into the document. In other words, Scalia would have his excuse to declare HIllary's appointment unconstitutional.
The funny thing about Scalia is how fluid his definition of "plain meaning" seems to be.
December 4, 2008 1:42 AM | Reply | Permalink
You could argue that the Emoulments clause is not violated at all.
The "emoulments" of the office have been decreased by inflation. Rectifying that with a cost-of-living adjustment could be characterized as not an increase at all. Certainly, if you talk in terms of real dollars, that's the case.
Yes, you could argue either way. In the end, it would be resolved by a political decision from the courts. But there's enough wiggle room there for a decision either way to have real plausibility.
December 3, 2008 7:44 PM | Reply | Permalink
Agree that you have to look at the intent - it's basically so the senate / prez can't create an Inspector-General of Krispy Kreme, and then pay someone from their ranks $2,000,000 p.a. to cruise around making sure the dounts are awesome.
There's a very strict reading being given to this over at Redstate, and to those who favour a super strict reading (ie, no room for interpretation at all), I would argue that the use of 'he' in the clause means Hillary is actually elgibile, as females are not specifically excluded.
December 3, 2008 8:33 PM | Reply | Permalink
I like the "she" option as well. It's funny to see the wingnuts all of a sudden up in arms over the precise details of the Constitution, after hiding under their rocks for the last eight years.
December 3, 2008 8:51 PM | Reply | Permalink
I could just as easily argue that the emoluments were not raised during Clinton's term but by a previous congress and that they only took effect during her term. You could counter that this is nonsense and violates the common sense interpretation of the law and you'd be right.
In the same way, to argue that to raise the salary and then lower it back down again is not equivalent to never having raised it at all also violates a common sense understanding of the law and its intent. It's a distinction without a difference, and there's nothing in the clause to preclude such an interpretation. Otherwise, in an era of regular COLA raises, no congressman would ever be eligible for cabinet posts or other important jobs in a new administration. Who would fill these posts? This is obviously not the framers' intent.
One of the first principles of the law is reasonableness.
December 4, 2008 10:08 AM | Reply | Permalink
Once her pay is cut, the violation disappears.
Yet another tempest in a teapot.
Just another excuse to argue.
December 4, 2008 10:49 AM | Reply | Permalink