The issue, first raised here by TedF, of whether Hillary Clinton is constitutionally eligible to serve as Secretary of State (the issue being that the salary for that job went up during Clinton’s Senate term, creating a possible issue under the Emoluments Clause), is apparently on the fast track for resolution. NYT:
Senate Democrats were working Tuesday to put together legislation making it possible for Senator Hillary Rodham Clinton to become secretary of state despite a constitutional clause that some critics argue should bar her from joining the cabinet…. In the past, Congress has gotten around this by passing a resolution cutting the salary for the office at stake back to what it was before the nominee’s most recent election.
This became known as the “Saxbe fix,” after it was used to facilitate President Richard M. Nixon’s appointment of Senator William Saxbe of Ohio as attorney general. It happened most recently 16 years ago when incoming President Bill Clinton made Senator Lloyd Bentsen of Texas his treasury secretary.
The Saxbe fix will resolve the issue for 99.94% of Americans. The remaining few — right-wing activists like Judicial Watch, and some conservative legal bloggers — may continue to debate whether the Emoluments Clause technically bars Clinton from serving even though she would not personally benefit from the salary increase awarded during her Senate term. But most people recognize that the purpose of the Clause is to prevent legislators from enriching themselves at taxpayer expense. Under the Saxbe fix that will not happen, so Senator Clinton should have no problem assuming her new post. There might be a few Republican Senators who will cite the Emoluments Clause in voting not to confirm her, but no more than a few.
Will the courts ever get to decide this? It’s a bit hard to see how, because at the moment there is probably no one with standing to bring a lawsuit challenging the Clinton appointment. (Some will try, but the cases will likely be dismissed.) However, it is possible that, down the road, a constitutional challenge to the legitimacy of Clinton’s appointment could make it into court, in the event that an individual or corporation is legally harmed by a regulation or other action taken under the Secretary of State’s authority. We’ll have to wait and see.