Clinton to SoS unConstitutional?

According to the LA Times’ Top of the Ticket blog, president-elect Barack Obama’s choice of Senator Hillary Clinton for Secretary of State may not be Constitutional due to this clause in Article One, Section Six of the U.S. Constitution (emphasis mine):

“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.”

At issue is the fact that the salary of the Secretary of State has increased since Hillary Clinton became a Senator, thus prohibiting her from becoming Secretary of State unless the salary was reduced to a level that wouldn’t constitute a pay increase for Senator Clinton. This isn’t the first time a president (or a president-elect) has run into this problem. President Nixon was the first president to run into the same problem when he wanted to appoint Ohio’s Republican Senator William Saxbe as attorney general. The solution at that time, since named the “Saxbe fix,” was for Congress to pass another law reducing the pay of the Attorney General so that Saxbe wouldn’t benefit financially from the higher salary he’d previously voted on. Similar fixes occurred for President Jimmy Carter and President Bill Clinton, so it’s not unlikely the same kind of fix could be enacted to allow Sen. Clinton to become the next Secretary of State.

Seeing as how president-elect Obama was once a former part-time constitutional law professor, it’d seem he should have known this would be an issue, but I’m willing to bet he made sure a “Saxbe fix” could be enacted to allow Senator Clinton to serve as Secretary of State before he chose to proceed with offering her the position.

H/T to illyT.

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2 thoughts on “Clinton to SoS unConstitutional?

  1. After discovering that Hillary was not Constitutionally qualified for the Secretary of State job because the salary of the secretary of State was raised while she was in the Senate, Congress and President Bush passed a bill lowering the Secretary Of State’s salary. There will likely be a federal lawsuit. I wonder if John Kerry will be the plaintiff?

    President Signs Bill Lowering Salary of Secretary of State
    December 19th, 2008

    On December 19, President George W. Bush signed Senate Joint Resolution 46, which lowers the salary of the Secretary of State from $191,300 to $186,600. SJR 46 had been introduced in the U.S. Senate on December 10, and it passed unanimously that same day. The House passed it unanimously on December 12. The reason for the bill is that Article I, section 6, says that no member of Congress may take an office if the salary for that office had been increased while that individual was in Congress. Senator Hillary Clinton was in Congress when the Secretary of State’s salary was increased in 2007. Link here.

  2. Eh, this isn’t the first time this has been done; in fact, it’s been done at least three times before, as I indicated in my original post.

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