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US Constitution Says Hillary Clinton Can't Serve as Secretary of State

It's certainly not a well known portion of the Constitution, but it's there, clear as crystal. From Article I Section 6:

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.

Congress raised the compensation for cabinet positions this past term, of which Clinton was a member; therefore, she technically can't serve in the cabinet of the Executive branch. But this is not the first time this issue has arisen. Nixon appointed William Saxbe to be attorney general after he voted to increase cabinet pay during his term. Nixon and Congress addressed this issue by allowing Saxbe to take the previous AG salary. It's become known as the Saxbe Fix. But many Senate Democrats at that time, including Robert Byrd, were not pleased:

Congress acceded to Nixon's request to lower the attorney general's salary to its pre-1969 level. Apparently this had been done once before, in 1909, for a senator in line to be secretary of state. And President George H.W. Bush, as he was leaving office, approved a Saxbe fix so that Treasury Secretary Lloyded Bentsen could move from the Senate to take that job.

But Democrats in the past have inveighed against this sleight-of-hand. In the Saxbe case, 10 senators, all Democrats, voted against the ploy on constitutional grounds. Sen. Robert C. Byrd (D-W.Va.), the only one of them who remains in the Senate, said at the time that the Constitution was explicit and "we should not delude the American people into thinking a way can be found around the constitutional obstacle."

It appears this part of the Constitution has been worked-around enough that Clinton will do the same thing. Besides, as Pittsburgh councilwoman Tonya Payne has said, "who cares if it's unconstitutional." And as for you trolls, don't even try using the lie that George W. Bush called the Constitution just a "goddamned piece of paper." Factcheck.org already weighed in on the accuracy of that report:

We judge that the odds that the report is accurate hover near zero.

Hat tip: Stop the ACLU

Well, it seems Bill Jempty beat me to this issue three days ago. Be sure to check out his post.


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Comments (13)

On the issue of standing to... (Below threshold)
Edward Sisson Author Profile Page:

On the issue of standing to bring a court challenge to the constitutionality of a Clinton Secretary of State appointment, here are some avenues:

1) Persons adversely affected by terms of particular treaties. Under the Supremacy Clause, certain terms of certain treaties can have the effect of federal law, placing burdens upon citizens. And there are treaties, such as extradition treaties relating to criminal defendants, which have very substantial direct effects on certain individuals. If a treaty comes into effect only as a result of the actions of a person purporting to act as Secretary of State, or if a treaty is signed not by the President but by a person who is signing because he or she purportedly is Secretary of State, a person against whom the treaty is invoked would appear to have standing to complain in court. Indeed, in the context of a person subjected to an extradition treaty, whose very liberty and perhaps life are at stake, there would be a very good constitutional argument, that no "Saxbe fix" statute could operate to deprive that person of fundamental rights such as liberty or life.

2) Pay claims by dismissed subordinates. One way in which issues that on their face appear to be outside the courts nevertheless get into the courts is a suit in the Court of Federal Claims seeking salary or money owed a person who was dismissed or otherwise lost money as a result of an action by a particular official. The challenge is grounded on the official not having the actual authority to take the action. Court-martials prior to the 1951 Uniform Code of Military Justice, for example, were outside the court system, but dismissed officers could sue for back-pay and challenge the court-martial in connection with the back-pay suit. Also, back-pay complaints based on a failure to promote a military officer can occur, grounded on the argument that the official who barred the promotion did not actually hold the office that is vested with the power to affect promotions; see Lt. Law v. US, a 1991 Claims Court case by Judge Andewelt (I was the law clerk on that case).

3) Civil false claims act cases. A person collecting a salary and benefits from the government by claiming to be an officer of the government, but who is not actually such an officer, might be at risk of a false claims action. In certain circumstances, private individuals can bring such cases and the Department of Justice can then decide whether to assume control of the case. If I were personal legal counsel to Hillary Clinton (as an individual, not as a Senator), I would devote careful and comprehensive legal research to this issue.

4) There is also the question of whether statutes that bar private citizens from engaging in the conduct of the foreign affairs of the USA might also place in legal jeopardy any person who purportedly is acting as Secretary of State.

Also of interest on the issue of whether Sen. Clinton can avoid the problem by promptly resigning, "Volokh" commenter John Jenkins made a good point when he said

"a Senator or Representative must already resign his seat to take any executive position under the balance of Article I, § 6, ¶2: 'and no person holding any office under the United States, shall be a member of either House during his continuance in office.'" The case of current members is taken care of as regards all offices by the clause he cites, while the clause we are talking about applies only to a subset of such offices, namely, those positions that are (a) filled by appointment, (b) in which the emoluments increased (c) during a specific time period. Thus it appears that the clause we are talking about has effect only as applied to former members of Congress. Thus a Hillary resignation prior to appointment would not free her from the clause.

Finally, it is helpful to identify just what action the clause bars. Here, the President nominates, then the Senate confirms, and then the President appoints. Technically, therefore, the clause we are talking about would place no explicit bar on the President nominating, and the Senate confirming, a person described by this clause; the barrier arises because the President could not then complete the process by appointing that person to the office. Of course, since there is no point to nominating and confirming a person who could not then be appointed, no nomination would ever be done in the first place. However, in the event there is litigation over such a case it would be necessary to be precise in identifying the action that was unconstitutional -- the President's post-confirmation appointment.

I'd like to believe we're o... (Below threshold)

I'd like to believe we're on to something here, but I wonder how so many other Senators and Representatives have been able to jump right in to Cabinet positions.

Clinton plucked Les Aspin right out of Congress to be SecDef and did the same with Lloyd Bentsen at Treasury.

Bush picked Ashcroft to be AG. Although he had just lost a race for Governor, Ashcroft was a Senator until January 3, 2001. I'm sure there are other examples of this, those just jumped out at me.

This is laughable. This wil... (Below threshold)

This is laughable. This will no more stop "the Obama" from appointing anyone to anything. What Obama wants, Obama gets.

The constitution, merely a ... (Below threshold)

The constitution, merely a technicality, merely and inconvenience.

Well, it looks like the rep... (Below threshold)

Well, it looks like the republican crook Nixon set a precedent. This is why Republicans should oppose the unconstitutional whenever they see it.

So far they have not seemed to mind that Bush treated the constitution like, "A GODDAMN PIECE OF PAPER" even if he never called it such.

The Saxbe fix does not get ... (Below threshold)
Ken in Camarillo:

The Saxbe fix does not get around the actual wording of the Constitution. However, the intent seems clear: don't allow an officeholder to participate in creating a subsequent office or increasing its compensation such that the officeholder is the beneficiary of his own actions.

I claim to be an original meaning supporter, and it seems to me that the Saxbe fix is legitimate when considering the actual intent of that provision of the Constitution. I do feel uncomfortable having to take a position that implies that the authors "made a mistake in expressing themselves" when creating that provision. Also, this interpretation goes against the principal that the "clear meaning of the actual words in the document" should have highest weight in making an interpretation.

It seems to me that the intent is clearly different than the actual words of the document.

But maybe they really did mean that keeping the salary at the previous level wasn't a remedy.

What a dilemma!

Hillary Clinton allegedly s... (Below threshold)

Hillary Clinton allegedly saw to it her own New York constituent was jailed for reporting New York federal court corruption to her.


So, if Clinton will align herself with George W. Bush style of installing corrupt judges to fix cases, Obama's cabinet does not need the sleaze, it needs to succeed.

The Constitutional snag tha... (Below threshold)
Carlos Navarro:

The Constitutional snag that would bar Hillary Clinton from becoming Secretary of State would be simple to fix: Have Hillary take on the job pro bono--for the good of America--and then let the Wall Street moguls, Chinese generals, Saudi princes, international bankers, etc. who own her and husband Bill cover the family multi-million dollar living expenses, as they've been doing for the past 35 years.

Why would Barack Obama let ... (Below threshold)

Why would Barack Obama let a pesky thing as the Constitution stand in his way? Frankly, I would be surprised that he could stand up and take the oath of office to "uphold and defend the Constitution of the United States of America" when he has stated repeatedly that it is a "flawed document."

when he has stated repea... (Below threshold)

when he has stated repeatedly that it is a "flawed document."

Really? That's interesting. Where else besides in his Chicago Public Radio appearance did he say that?

Obama referred to the constitution as flawed because when drafted it specifically institutionalized slavery as part of its framework. Do you disagree with Obama? Do you believe that slavery ought in fact to be part of the federal constitution of this country?

I often wonder if Rightists just don't investigate what their controller Limbaugh says, or if they know he's lying and just go along with it for propagandistic purposes.

Anyone who voted for obongo... (Below threshold)

Anyone who voted for obongo is a nigger lover!!!!

For anyone insisting on str... (Below threshold)
Steven Pounders:

For anyone insisting on strict adherence to the constitution, I should point out that the argument against Senator Clinton's appointment to the cabinet falls apart constitutionally. The article only applies "during the Time for which he was elected".

Clearly the Framers are not addressing female senators.

Oh ... but was that really the "intent" of the framers. Shouldn't we follow the "principle" of the constitution rather than the letter?

Well, not as Professor Michael Stokes Paulsen likes to point out "Unless one views the Constitution's rules as rules that may be dispensed with when inconvenient" ... because "the plain linguistic meaning of this chunk of constitutional text" does not apply to women. (I'm using Mr. Paulsen's oft-quoted words against his own argument, of course.)

Back in the old days there ... (Below threshold)

Back in the old days there was noI inflation. A cost of living raise is a minimal amount that just adjusts for inflation. I also suspect that the COL raise was likely a general issue affecting a whole group of pay grades. Thus the vote was not specific to any one position in government that she was targetting for personal gain.






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