"The pay may not be as good as it appears" -- Barack Obama and Hillary Clinton, erstwhile rivals, playing on the same team now. (Photo by AP)
by Mark Silva
Amid word that President-elect Barack Obama is ready to nominate his erstwhile political rival, Sen. Hillary Rodham Clinton of New York, for Secretary of State - on Monday in Chicago, the AP signals today - there appears to be some new interest in an age-old constitutional question: How can he?
It's not a question of the senator's husband, former President Bill Clinton, and all his foreign dealings since leaving office. He has agreed to divulge the identities of the contributors to his Clinton Foundation, bar foreign donations to his Clinton Global Initiative and submit his own global itinerary to State and the White House Counsel for vetting.
Rather, no shortage of law school students and bloggers, often one and the same, has been exploring that clause of the Constitution (Article One, Section Six) that 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."
While this would appear to be a fairly straightforward stricture, our colleague, Andrew Malcolm, notes at the Ticket this morning that Obama will not be the first president to find an end run around the "emoluments'' question.
"Apparently, President Nixon ran into the same problem when he wanted to appoint Ohio's Republican Sen. William Saxbe as attorney general.,''' Malcolm notes. "The solution back then, since dubbed the "Saxbe fix," was for Congress to pass another law (not without some outspoken dissent from Democratic senators, by the way) reducing the AG's pay so Saxbe wouldn't benefit financially from the higher salary he'd previously voted on.
"Similar fixes occurred when President Jimmy Carter named Edmund Muskie secretary of State and H. Clinton's own husband Bill named Lloyd Bentsen to head Treasury.,'' he adds.
Yet, for all the historical precedents of "fixes'' for this certain speed-bump in senatorial nominations for civil office, Mr. Malcolm has decided to play the strict constructionist on this question:
"We're not lawyers. But we do speak English. And to our eyes that constitutional clause doesn't say anything about getting around the provision by reducing or not benefiting from the increase of said "Emoluments." It flat-out prohibits taking the civil office if the pay has been increased during the would-be appointee's elected term. Period. Which it has.''
Obama and Clinton may or may not choose to address this question.
Comments
Obama is nobody's fool. Certainly he was already aware of this. This makes me think that keeping all the 'old guard' financial people close was strategic. Perhaps we do not have enough TIME to prosecute all the pigs in the financial industry, all the pigs in the automotive industry, and the war profiteering industry.
Democracy now last week did a good job not only explaining how the finance people have and are doing us wrong.
http://www.democracynow.org/shows/
2008/11/25
But the link above also explained very well, how GM killed the electric car and how Exxon Mobile holds the patent (######Q@@@@IIIII) on the battery for same.
Meanwhile, lost in all the discussion about Hillary, will no doubt be the words of the brave soldiers who patriotically spent their time trying to speak truth to power about what our tax dollars are doing.
http://www.democracynow.org
/2008/11/28/winter_soldier
_on_the_hill_war
Posted by: the war makes us less safe, and certainly Prez elect knows this? | November 30, 2008 10:15 AM
Why should our modern-day Messiah be bound by the Constitution---what some White guys wrote 200+ years ago?
This is the New Era, after all. The Age of Obama!
Posted by: Obama forever! | November 30, 2008 10:47 AM
Should trun out interesting the way the Obam Campaign downgraded her to win the nomination-
Posted by: Inky | November 30, 2008 12:09 PM
I have no problems with the constitutional questions involved here. I would like to see her get inside the white house somewhere. I want to see what she can do. I may not agree with all that Obama stands for....I have to say that some has actual appeal to me and I want to hear more.
Posted by: Teresa | November 30, 2008 12:22 PM
Focusing on Malcolm's concluding paragraphs, as discussed more fully at my blog (linked with my name here), it depends on what you mean by "English," "reducing" and "increased."
Starting with "English," as Chief Justice John Marshall wrote (while interpreting another separation of powers issue under Article I) "we must never forget that it is a constitution we are expounding." McCulloch v. Maryland, 17 U.S. 316, 407 (1819). It's not a dinner menu; everything must be interpreted in context, with an eye to the multiple balances of powers and interests reflected by the Constitution's text as well as past interpretations and future consequences.
Moving on to "reducing," there's nothing wrong with a Constitutional "fix;" indeed, there's every reason to believe that's just as the Framers, who themselves drafted a compromise document, would want. Reducing salary is also how we fixed the issues arising from this clause three times in the past, like with the "Saxbe fix," named after Nixon's last Attorney General, for whom the Congress specifically reduced his pay back to where it was prior to his term in the Senate. (You can see the notes to 5 U.S.C. 5312 littered with all three prior "Compensation and Emoluments" fixes). If Obama wanted to "fix" this situation by rescinding the COLA adjustments for the Secretary of State, that would fit within the purposes of the clause, as described below.
As for "increased," that's not nearly as clear as Malcolm believes, because of the complexities of government. Bush's Executive Order did not arbitrarily increase emoluments -- instead, the Order merely published the new numbers required on an annual basis by a statute most recently amended in 1990. See notes to 5 U.S.C. 5303. The "increase" for Constitutional purposes thus arguably occurred back in 1990; Bush did nothing more than carry the existing numbers through the method established there, hardly the same thing as a deliberate increase in salary.
In sum, there's a strong argument that's there is no emoluments problem -- the emoluments at issue here were increased in 1990, long before Clinton's term.
Posted by: Max Kennerly | November 30, 2008 12:28 PM
what some White guys wrote 200+ years ago?
Posted by: Obama forever! | November 30, 2008 10:47 AM
Your neck seems to be a little red there bubba. It's good to see the "great" Americans and religious right come out and show yourselves for what you really are.
Posted by: bill r. | November 30, 2008 12:47 PM
The constitutional issues are really simple. That clause prohibits Senators or Congressmen from holding an office either created during the time for which he/she was elected or for which the compensation was increased during that time. The Office of Secretary of State wasn't created during any of Hillary terms as Senator, so that part doesn't apply. The only question is whether the Secretary of State's compensation was increased during Hillary's tenure. If it was, then Hillary can't be a Senator when appointed Secretary of State.
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Contrary to what some have suggested, a law decreasing the Secretary of State's pay would not permit Hillary's appointment if compensation for that office was earlier increased during her tenure as Senator. That's because the so-called "Saxbe fix" isn't a genuine constitutional fix. The Constitution says an increase in compensation for an office during a Congressional member's term bars him/her from appointment to that office during the term for which the Senator/Congressman was elected. Nowhere does it say that a subsequent decrease in compensation for an office cancels out a previous increase to make an ineligible member of Congress eligible for appointment. If the words of the Constitution "convey a definite meaning which involves no absurdity nor any contradiction of other parts of the instrument, then that meaning, apparent on the face of the instrument, must be accepted, and neither the courts nor the legislature have the right to add to it or take from it." (Lake County v. Rollins, 130 U.S. 662, 670 (1889); and see United States v. Sprague, 282 U. S. 716, 731 (1931) [In accord].) Since the provision of Article I, Section 6 conveys a plain meaning without ambiguity or absurdity, there is simply no basis for reading the "Saxby fix" into the Constitution as an exception to it.
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However, there is a simple answer for all of this. The clause only bars the appointment of Senators and Congressmen to an office during their elected term under the specified circumstances. It says nothing about the appointment of former Senators or Congressmen. Thus, Obama could appoint Hillary any time after she resigns her Senate seat if Article I, Section 6 makes her otherwise ineligible.
Posted by: John W. | November 30, 2008 5:18 PM
The horse is out of the barn relative to Obama's ability to appoint HRC as Secretary of State under very clear language in Article I. If, as the interpretation above, she could be nominated is she were not a member of the Senate body, It is too late. Past "cheats" on this Article I by past presidents taken for what they are, HRC was nominated whilst serving in the Senate. She was nominated during her term as junior senator from NY. Either Obama follows the constitution in this instance, or we can expect this imperial person to serve as he chooses, regardless constraints and opportunities within the Constitution. We have insight into what kind of man he is and HRC for doing what she is doing. She should serve her term, the enter the Administration in the Executive branch. Tough slog this one is.
Posted by: Craig Winter | December 1, 2008 12:09 PM
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Posted by: Craig Winter | December 1, 2008 12:09 PM
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I can't completely agree with you, Craig. Obama isn't President yet because the Electoral College has yet to vote and he hasn't taken the oath of office as President as specified in the Constitution. Since the Constitution gives the President-elect no powers of appointment, he couldn't have officially nominated or appointed anyone to office yet. The names he has given are of those whom he plans to appoint. There is, therefore, still time for all the players to adjust their positions to conform to the Constitution on this issue.
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Furthermore, there is still a question as to whether the compensation for the office of Secretary of State was altered at a time that would disqualify Hillary Clinton. I left open that question in my last post (above). I think it is reasonable to read Article I, Section 6 of the Constitution to mean that a Senator or Congressman is barred from entering an office created or provided greater compensation only for the term that member is serving when the change occurs. The purpose of the bar, after all, is to prevent a member of Congress from feathering his or her own future bed a little better before taking an appointment. In this regard, if I recall correctly, Hillary is already in her second term as Senator from New York (having stood for re-election in 2006). Thus, a change in compensation for Secretary of State during her first term wouldn't disqualify her. It was a separate "time" for which she was elected under Article I, Section 6. Thus, it is only if a change of compensation occurred during her second term that she would run up against some trouble. In this regard, I am unsure of whether there was any increase in compensation for the Secretary of State during that time.
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However, having said all of this, I am tempted to agree with you that Obama and company would just tape an aspirin to the wound - if a wound there is - by applying the "Saxbe fix." I am unsure of anyone from a Party that treats the Constitutional as advisory only, and insists the plain meaning of its words is subject to change at any time because it is "a living document." As of lately, my skepticism on this heading applies to both major political parties.
Posted by: John W. | December 1, 2008 2:28 PM