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Unconstitutional Hillary?

November 24, 2008 |  9:05 am
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.

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