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Unconstitutional Hillary?

Barack Obamaconstitutionemoluments clauseHillary ClintonSecretary of State
Hillary Clinton, constitution, emoluments clause, Barack Obama, Secretary of State
Emmanuel Dunand/AFP/Getty Images

You can debate the wisdom of President-elect Barack Obama's apparent decision to name Hillary Rodham Clinton as secretary of state. The more interesting question is whether Clinton's appointment would violate the Constitution, namely Article I, Section 6. As every school child knows, that provision 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.      

Clinton was re-elected to the Senate in 2006. During her current term, the salary for Cabinet officers was increased from $186,600 to $191,300.

I'm old enough to remember two controversies over whether the so-called Emoluments Clause should doom a Cabinet nomination. The first involved Richard Nixon's appointment of Ohio Sen. William Saxbe as attorney general after the uproar over the firing of Elliot Richardson in the Saturday Night Massacre. Congress "solved" the problem by temporarily lowering the salary of the attorney general, but, as Al Kamen noted the other day in the Washington Post, some Democrats groused about the legality of this "Saxbe fix." 

But it was a Democratic president, Jimmy Carter, who needed a Saxbe fix when he decided in 2000 to appoint Sen. Ed Muskie as his secretary of state. Muskie replaced Cyrus Vance, who had resigned in protest against Carter's ill-fated decision to attempt at a military rescue of U.S. hostages in Iran.

UPDATE: As reader Mary pointed out in the comments, Carter's appointment of Muskie did not occur when Bill Clinton was president. It happened in 1980.

If Clinton is nominated for State and Congress gives itself another fix, the emoluments issue will again disappear into reference books. Before that happens, someone should point out that a serious question lurks in this seemingly trivial matter.

The issue is whether liberal interpretations of the sexier parts of the Constitution -- like the "majestic generalities" of the Bill of Rights -- have blinded us to the fact that in some places the Constitution reads more like an insurance policy than a manifesto or Fourth of July speech. Exhibit A: Article II, Section 1, which says that the presidency is off-limits to anyone "who shall not have attained to the Age of thirty-five Years."   

But, as the Saxbe/Muskie/Clinton fix demonstrates, even seemingly ironclad constitutional provisions can be hacked through when it's expedient.

 

Comments () | Archives (5)

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Romulo Maldonado

According to your Opinion article on "Oposicion or support to the Iraq war should not be considered a litmus test for appointing anyone to a post on the Obama administration", Hillary Clinton voted for the war in Iraq because she feared that to do otehrwise it would hurt her future political career. Isn't that putting her personal agenda ahead of that of the people she serves. Do we really want a person with such flawed judment to be appointed as the next Secretary of State?

Mary

Since Jimmy Carter was NOT president in 2000, how much of this article can be relied upon as truth?

Marty

Sad, this would/could have given Obama a chance to rethink a bad first choice. Mrs. Clinton has shown always that she is in fact #1 when it comes to her Country. Mrs. Clinton is more a republican when it comes to the war & more like Bush/McCain when it comes to running a campaign & will never be able to put her Country or Mr. Obama ahead of what she thinks is best for HER & Mrs. Clinton will never allow anyone to tell her what to do or what path to travel & the world who thought they were getting Obama will sadly see they got Mrs. Clinton, NOTHING new at all. This is I hope Obama's 1st big mistake, lets hope the rest will not be as bad as this one.

kmb08

Marty,
Why don't you give the HRC hating soundbites a rest!!!! HRC is brilliant, and has a masterly grasp of policy. HRC has been helping people, probably long before you were born, and befor she even met Bill . You wouldn't know her record if it hit you squarely in the face. Ask the children who now have health insurance, or the wounded veterans who now have better care when they come home, or the breast cancer patients who have more funds going to research, or anyone who has benefitted from Family Leave at their jobs, or Pres.-elect Obama, who earned my vote because HRC showed such sincerity when campaigning for him. I was fully prepared to send a protest vote to the DNC, RBC, and media before HRC convinced me. For people to say HRC cares only about herself shows more than just ignorance!! Research is a beautiful thing....

CaptainSmith

This can't fly. You don't get to tweak the Constitution to get what you want--isn't this exactly what we've been upset about over the past eight years? And now, with the first breath of fresh air in eight years, we get exactly the same thing? DO NOT LET THIS HAPPEN! Otherwise _everything_ in the Constitution can be ignored.


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