Say What? Hillary is INELIGIBLE to become Sec of State???

[Little-Acorn]

Here's one I never saw coming.

The Constitution has a statement saying that a Senator or Representative can't be appointed to a civil Federal office, if that office is newly-created, or has had a pay raise during the Senator's or Rep's elected term.

The office of Secretary of State is hardly newly-created, of course. But apparently it did get a pay increase last year... which was during Hillary's current term as Senator.

If I'm reading this clause right, it means that Hillary CANNOT BECOME SECRETARY OF STATE any time during the six-year term of her Senate membership... even if she resigns her Senate seat before those six years are up.

This will be ignored by Democrats of course (as they did with Lloyd Bentsen). And the Republicans, as usual, won't have the spine to push the issue and actually stand up for obeying the Constitution. So Hillary will become SecState, and no one will hear a peep out of the media.

But boy, the things that come out of the woodwork at you sometimes!

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http://www.volokh.com/posts/1227562708.shtml

More on Hillary Clinton and the Emoluments Clause:

From Prof. Michael Stokes Paulsen, author of Is Lloyd Bentsen Unconstitutional?, 46 Stanford L. Rev. 907 (1994) (some paragraph breaks added, some glitches fixed with Prof. Paulsen's advance permission):

Thanks for alerting me to this fascinating (and fun) issue! I've played in this particular sandbox before [as to Lloyd Bentsen], and am amused to see it return in slightly different form.

So, "Is Hillary Clinton Unconstitutional?" In a word, Yes -- or, to be more precise, a Secretary of State Hillary Clinton would be unconstitutional.

The Emoluments Clause of Article I, section 6 provides "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 encreased during such time." As I understand it, President Bush's executive order from earlier this year "encreased" the "Emoluments" (salary) of the office of Secretary of State. Last I checked, Hillary Clinton was an elected Senator from New York at the time. Were she to be appointed to the civil Office of Secretary of State, she would be being appointed to an office for which "the Emoluments whereof shall have been encreased" during the time for which she was elected to serve as Senator. The plain language of the Emoluments Clause would thus appear to bar her appointment ... if the Constitution is taken seriously (which it more than occasionally isn't on these matters, of course).

Are there any legitimate escape hatches to this constitutional bar? Let's consider them quickly. First, does the fact that the emoluments of the office were increased by executive order, pursuant to a general authorizing statute, take the case out of the Emoluments Clause rule? Plainly not. The clause is written in the delightfully ambiguous passive voice that we always discourage in our law students. "shall have been encreased ... by whom, exactly?!" The clause does not limit the application of its rule to direct statutory enactments.

In the world in which legislation may be accomplished by delegation of general quasi-lawmaking authority to executive branch officials, there is no difference in legal principle between a direct legislative enactment and an executive order pursuant to specific legislative authorization. If pay increases may be accomplished, legally, by executive order, then those increases in emoluments fit within Article I, section 6's rule. If those increases occurred during the time for which Hillary Clinton was elected to the U.S. Senate, they disqualify her, regardless of when the general statutory authorization for such increases was enacted.

But wait! Wasn't the (probable) purpose of the Emoluments Clause to prevent congressional self-dealing in the form of creation of offices (or increasing their emoluments) and hoping to profit thereby by being appointed to such office? And isn't that purpose plainly inapplicable here? Perhaps. But the content of the rule here is broader than its purpose. And the rule is the rule; the purpose is not the rule.

As I wrote in something of a sequel to Lloyd, if purposes were taken as rules, and if the meaning of texts "evolve" over time, then "thirty-five years of age" does not mean "thirty-five years of age" but stands instead for an evolving principle of maturity. In 1996, this would have meant that the lawful President of the United States was Strom Thurmond, not Bill Clinton. Michael Stokes Paulsen, Is Bill Clinton Unconstitutional? The Case for President Strom Thurmond, 13 Const. Comment. 217 (1996). So too, the fact that the Emoluments Clause catches in its snare the (possibly) blameless (for this at least) Hillary Clinton does not mean that its constitutional command can be ignored with impunity.

Then there's the infamous "Saxbe Fix" precedent, which I discuss in Lloyd. Couldn't Congress pass a repealing statute, or President Bush (or even President Obama) rescind the executive order, selectively, as to Hillary and make everybody happy? Nope: The clause forbids the appointment of someone to an office the emoluments whereof "shall have been encreased." A "fix" can rescind the salary, but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls.

Unless one views the Constitution's rules as rules that may be dispensed with when inconvenient; or as not really stating rules at all (but "standards" or "principles" to be viewed at more-convenient levels of generality); or as not applicable where a lawsuit might not be brought; or as not applicable to Democratic administrations, then the plain linguistic meaning of this chunk of constitutional text forbids the appointment of Hillary Clinton as Secretary of State. I wouldn't bet on this actually preventing the appointment, however. It didn't stop Lloyd Bentsen from becoming Secretary of State. But it does make an interesting first test of how serious Barack Obama will be about taking the Constitution's actual words seriously. We know he thinks the Constitution should be viewed as authorizing judicial redistribution of wealth. But we don't know what he thinks about provisions of the Constitution that do not need to be invented, but are actually there in the document.

There is one last chance for Hillary. The Emoluments Clause provides that its rule applies to any senator or representative, "during the Time for which he was elected." Perhaps the rule of the Emoluments Clause does not apply to female U.S. Senators. It's an out-there argument, of course (Hillary and I both went to Yale Law School). But I think I would prefer even this (unpersuasive) pronoun pounce to the Saxbe Fix, or to ignoring the text of the Constitution entirely.

[Yurt]

i guess the author disagrees with the supreme court ruling in heller...they looked at the purpose/history etc of the 2nd amendment given the ambiguity of the amendment and the author here admits the clause is ambigious.

imo, the author of the article is wrong and if this is challenged, does the author truly believe the court won't undergo an analysis like heller and dozens of other con law cases....

[gabosaurus]

Bush has ignored the Constitution throughout his presidency. So this would be nothing new.

[Mr. P]

You wanna hold em to this Constitutional requirement but NOT the "Natural born" part for bambam? It's just the beginning of the total disregard we are about to witness.

[5stringJeff]

The Constitution has been optional for elected American officials since about 1861. Why would they start following it now?

[Little-Acorn]

the author here admits the clause is ambigious.


He says that the voice it is written in (passive voice) is ambiguous, but not the clause itself.

What part of the clause, do you feel is ambiguous? Seems quite clear to me.

"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 encreased during such time."

"Emoluments" means the money he is paid to do the job required by the office, plus whatever perks (room and board, fancy gold watch, etc.). The rest is pretty clear.

No Sen or Rep shall be appointed to (that kind of office) during the term the Sen/Rep was elected for, if that office is created or the pay rate has been increased during the Sen/Rep's term.

Nothing ambiguous about that. And it hits Hillary right where she lives. Her current Senate term is 2007-2012, and apparently the pay rate for SecState was raised last year, during her term. There's no way this "Emoluments Clause" could NOT apply directly to her.

Wasn't meant for people like her, of course. It was designed to prevent "sweetheart deals", where a President and Senate provide a cushy makework job for a Senator. The Senate apparently had nothing to do with this pay raise - it was done by Bush via an executive order, according to the article. And he certainly had no idea he would be raising Hillary's pay when he did it - probably wouldn't have mattered to him even if he did know somehow.

But... as the article says, the purpose isn't the rule. The RULE is the rule, and this rule is clear.

Hillary, or any other Senator who was in office last year, is NOT ELIGIBLE to be appointed secretary of state until their term ends. Period. And hers doesn't end until January 2013. (Note that members of the House of Representatives who were in office last year, WOULD be eligible, since all their terms end every two years. By Jan. 2009, all their current terms would be over. Some are re-elected to subsequent terms, but those don't count.

So, as regards Hillary: Do we simply disobey the clear dictate of the Constitution, because we feel the framers probably didn't mean Senators like Hillary?

To a conservative (someone who believes inthe Rule of Law among other things), the only possible answer is, Hillary can no more be SecState than John McCain can (his Senate term ends in Jan 2011).

But, as I said earlier, Democrats will have no problem disobeying the Cosntitution, and Republicans won't have the spine to try to stop them. So Hillary will be the next SecState.

Bad for the Constitution, but this is one of the more minor violations the Dems have comitted inthe last seventy-plus years. Aside from that, probably doesn't make much difference to the country. SecState's job is to communicate and implement the President's foreign-policy agenda, not her own. IOW, her job is to do what Obama tells her. At least he's got her where he can keep an eye on her.

[manu1959]

Bush has ignored the Constitution throughout his presidency. So this would be nothing new.


so is your point obama is as bad as bush and will continue the same agenda......

[Yurt]

it is ambigious for the very reasons he stated, by whom exactly... are truly advocating that we should not learn the history and purpose of any rule of law when that rule leaves questions such as this one. if the rule was so bright line, he would not have said it was ambigious at all, even passive voice. the rule is further confusing by its own words:


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.

if you want to play literal and not look at the reason for a law, then by the clause's own operative words, the first part applies only to men and the second part applies to all persons....unless of course you want to include "his" as well.

you're extremely knowledgeable regarding constitutional issues and the law, so let me ask you this:

do you think the supreme court was wrong to look at the 2nd amendment's history and purpose? or maybe you don't think the 2nd amendment is. regardless, one thing is clear, people read that statute differently, hence ambiguity. IMO, when taken as a whole, this clause regarding compensation most likely relates to conflict of interest/self-dealing which i have no doubt the founders wanted to avoid. if anything, maybe they should just add another amendment like amend 27 to the first half of section 6.

[Little-Acorn]

it is ambigious for the very reasons he stated, by whom exactly...
Which is a distinction without a difference. It doesn't matter "who" raised the pay. The clause says that ANY raise in pay, invalidates candidacy by any of the Reps or Senators who were in office at the time, until their full term is up. If the Framers didn't limit their rule to raises done by only certain parties, then that means the rule aplies to pay raises in that office by ANYONE.

Unless you want to pretend you believe that, since the Framers didn't name exactly who might enact such a pay raise, that meant that the clause didn't apply to pay raises by anyone. In which case why did they put the clause in there at all? (I mention this only because there are a few people around here who might actually pretend they thought this *COUGH*gabby*COUGH*joesteel*COUGH*).

[Yurt]

Which is a distinction without a difference. It doesn't matter "who" raised the pay. The clause says that ANY raise in pay, invalidates candidacy by any of the Reps or Senators who were in office at the time, until their full term is up. If the Framers didn't limit their rule to raises done by only certain parties, then that means the rule aplies to pay raises in that office by ANYONE.

Unless you want to pretend you believe that, since the Framers didn't name exactly who might enact such a pay raise, that meant that the clause didn't apply to pay raises by anyone. In which case why did they put the clause in there at all? (I mention this only because there are a few people around here who might actually pretend they thought this *COUGH*gabby*COUGH*joesteel*COUGH*).

okay then, the clause distinctly mentions only men, so the clause does not apply to a female senator or congresswoman.

[Little-Acorn]

okay then, the clause distinctly mentions only men, so the clause does not apply to a female senator or congresswoman.

I agree. Obviously, by their use of the word "he", the Framers meant to say that if someday a woman became a member of the Senate, it was OK for her to engage in "sweetheart deals" like the ones this clause was meant to prevent, only men were prohibited from doing so.

Right.

[Yurt]

I agree. Obviously, by their use of the word "he", the Framers meant to say that if someday a woman became a member of the Senate, it was OK for her to engage in "sweetheart deals" like the ones this clause was meant to prevent, only men were prohibited from doing so.

Right.

how do you know this is about sweetheart deals? and if it is, then doesn't that get into the the purpose of the rule?

[Little-Acorn]

how do you know this is about sweetheart deals? and if it is, then doesn't that get into the the purpose of the rule?

I was just pointing out how absurd the Framers' thought processes would have to be, for your silly suggestion to have any merit.

Back to the subject:
Hillary is clearly ineligible for Secretary of State, or any other cabinet post or Federally appointed office, for the next four years. True also for any other Senator whose term does not expire this year.

The question is:

Will we obey the Constitution's clear law? Or decide that it's OK to ignore parts of it when we want to?

My guess is, we'll ignore it, and no one will have the spine to protest.

[Yurt]

right, so silly....i suppose the framers had no reason whatsoever, just bored, as to why that put that clause in there...uh huh

you know it was to avoid conflicts or sweetheart deals. that is why it is important sometimes to look at legislative history in order to determine what was meant. if there is no purpose to the rule, then the what purpose is the law? does the law exist for no purpose? do we have a rule of law for no reason other than to simply have some arbitrary and purposeless law on the books so the law writers got paid that day? do you really believe that laws should have no purpose, no due process and that all laws should solely be about the law and not have a reason to guard against anything, eg., the law is written, therefore the law is good.

well, the law excluded women on its face, but you have no problem with that and you go behind the words to include women yet refuse to go behind the words to get at the intention or purpose of the law.

and you call me silly? you can't have it both ways, either accept the law as is, face value, or you don't.