Is Clinton Eligible To Be Secretary Of State ?
Although I doubt it will go very far, there is a new twist in Clinton for SoS saga.
http://firstread.msnbc.msn.com/archive/2008/11/25/1688640.aspx
Basically the issue revolves around a fairly obscure section of the Constitution (Article I, Section 6) which provides that:
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.
Emoluments meaning salary and benefits for those of us not versed in 18th century terms. The problem that Clinton faces is that, earlier in 2008, Congress passed a law which increased the wages for various Cabinet members including State.
Since she is currently serving a term from 2007-2013, she would in-theory be unable to serve in the Cabinet during the next four years. In the past Presidents have gotten around this issue by lowering the salary of the office in question to the old level.
It does seem to me from a strict reading of the Constitution that this solution would not work and that she is not able to serve, but I don’t expect anyone to really make an issue of it.
But it is an interesting puzzle.
9 Responses to “Is Clinton Eligible To Be Secretary Of State ?”
Why should conservatives be bothered with precedent and tradition when they can enjoy a fresh serving of Clinton Derangement Syndrome?
I wouldn't say it's a “new” issue – the text at issue has been there for more than two centuries, and closer afield, I started posting about Hillary's problem with this clause eleven days ago, and have since posted here, here and here developing various themes related to the issue. Ten days after I emailed them about it, Volokh and Instapundit picked up on it. I have to admit it's starting to feel a little alienating to see people describe this as breaking news.
And, by the way, if we can find an appropriate plaintiff, you bet an issue is going to be made of it.
Sorry if I upset you Simon….
I always upset George, so I'm used to that but I don't like failing to give credit, so consider it given
Patrick – my tongue is somewhat in cheek, I just find it a little odd. But you came out the right way, and that's what matters.
What ultimately matters is that the issue get widespread coverage, the better to forestall the appointment; we shouldn't be satisfied with dismantling the constitution slowly rather than quickly, taking it apart doorjam by doorjam by proclaiming parts to be irrelevant when it's inconvenient. the Knox-Saxbe fix is a dodge; it doesn't satisfy the Constitutional rule, and shutting Clinton out would slam the door on an unfortunate Constitutional deviance.
It's nothing personal against Clinton. I have a soft spot for her (a writer for the Weekly Standard, I forget who, has suggested that this tendency has become more common among conservatives since the primaries) and I would by far have preferred her as President than Obama. But the rule here is quite clear.
Yes, it is 'dirty trick' when a Democrat is asked to actually hold to the Constitution. I guess after years of claiming Bush has been violating the Constitution, the Left feels it is their turn.
Well to be fair people of both parties have ignored the rule over the years so it's hardly a partisan thing.
Patrick's last comment gets to the heart of the matter to me. Surely, Clinton is not the first member of Congress to serve in a Cabinet in the last 200-odd years. What's happened in the past?
pacatrue:
But did those ex-members of Congress serve in the Cabinet after having served in a session during which the salary of their post had been increased?
I don't know the answer to that question and maybe the provisions of the Constitution should be changed. The apparent intent was to prevent members of Congress from feathering their nests before landing in them. No one would say that Clinton approved an increase in the salary of the Secretary of State; after all, she had her eyes set on a different job.
But the Constitution is explicit and it appears unambiguously prevents Clinton from taking the job at State. Surely then, the issue isn't whether past Presidents and Cabinet members have violated this provision of the Constitution, but what the Constitution, as we are now aware of it, actually says.
As a matter of curiosity, it would be interesting to look back and see if this provision has been routinely ignored. Many members of Congress have gone straight from the legislative branch to the executive, from James Madison to Mel Laird and Ed Muskie.
I've doubted whether Hillary Clinton was a good pick from Obama's perspective. My choice, were I in his shoes, would have been Richard Lugar, a choice he couldn't make politically now anyway; with Gates staying at Defense, more than one Republican serving in one of the Big Four Cabinet posts (State, Defense, Treasury, Justice) would have been untenable for a Democratic president. But Lugar would also be prevented from receiving nomination to be Secretary of State by the Constitution.
It appears that there's no way to finesse this issue on Obama's part. With attention being put on this provision of the Constitution, I don't think that he dares nominate Clinton now. I could, of course, be completely wrong.
Mark