1. By Executive Order, the Secretary of State’s salary was increased effective January 1, 2008.
2. Senator Clinton’s term of office is from 2007 to 2012, so the “emoluments” of the SOS’s office were “increased” during “the time for which [s]he was elected.”
3. If Senator Clinton takes office as SOS before 2012, she will take office “during the time for which [s]he was elected.”
4. The issue has arisen in the past, notably when President Nixon nominated Senator Saxbe to be Attorney General and when President Clinton nominated Senator Bentsen to be Secretary of the Treasury. In both cases, Congress passed bills to accomplish what has become known as the “Saxbe fix,” prospectively decreasing the salary of the office in question to the prior amount. But the constitutionality of the Saxbe fix is itself in question by serious scholars.
5. Interestingly, during the Saxbe affair, Democrats such as Senator Byrd and columnist Anthony Lewis protested that the President was ignoring the Constitution.
So, you constitutional lawyers out there, what do you think? Is Hillary eligible to be Secretary of State?
TedF
This is the kind of idiotic issue that only delights bloggers and especially lawyer bloggers.
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p>The purpose of the clause is to prevent corruption by rewarding legislators with cushy government positions. I don’t think anyone argues that Clinton wants the position for the salary in and of itself.
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p>There is no way this issue will prevent Clinton from being SoS.
Live a little!
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p>I agree that in practice this wouldn’t stop Clinton from being confirmed, even if the constitutional issue were black and white. People, rightly or wrongly, don’t much care about this kind of issue.
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p>But the constitutional text is pretty clear, isn’t it? Apparently, even Justice Breyer, when he was a professor at Harvard Law, opposed the Saxbe appointment on constitutional grounds at the time, despite the “Saxbe fix.”
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p>TedF
but it’s not going to stop her from becoming SoS. First, they could just roll back the salary for the position. That would satisfy even most of the purests (even if it doesn’t quite solve the problem). Second, even if they don’t roll back the raise, I don’t see how it would prevent her from becoming SoS. Who’s going to stop her? The Supreme Court? With what army? The only people it would piss off are the people who wouldn’t vote for Hillary or Obama anyway. They’re the people who may not vote at all.
This sort of attitude with respect to constitutional government among liberals/progressives is disappointing. Indeed, it is an attitude most notably shared by the present Vice President.
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p>This strikes me as a problem, and it will be interesting to see if the new Obama administration approaches it as its predecessor would have: “Constitutional limitations are trivialities that can be waved aside in our heroic effort to do good unto the land and deliver it from our demonic, evil political opponents.”
the tone of your post suggests that you do.
since you yourself had already painted liberals/progressives with a broad brush. tsk tsk.
I think he was suggesting (in his typically overbearing fashion) that we not repeat the mistakes of the past administration.
is not an especially good idea in life. I don’t think Obama will have to ram Hillary through as SoS, but my post only suggested he very well could if he wanted.
you stated above that even without a Saxbe fix, no one who voted for Hillary or Obama would be “pissed off” about what you concede is a clear violation of the constitution. As long as you voted for Hillary or Obama, that includes you. So you admit that there is a constitutional violation, then you say that a group of people that includes yourself won’t be pissed off about the constitutional violation. Condone means “to forgive, overlook, or disregard.” So yes, you condoned Obama violating the constitution.
You suggest that condone is a passive acquiescence. When I use it I generally mean to actively approve of something.
that he recognizes the constitutional violation, but that he will not be “pissed off” when it occurs. I think that’s active enough to constitute condoning.
but I suppose you can make up whatever you’d like and try to say that I said that in a roundabout way. Good luck with that…
So your claim is that even if there is no Saxbe fix, she’ll still become SoS and the only people “pissed off” will be people who didn’t vote for Obama or Hillary. Nothing roundabout, just reading what you wrote above. Care to retract or clarify?
I wouldn’t be pissed off doesn’t mean I condone it. Get that through your head. And all of that is very, very hypothetical, because chances are this will be resolved before it ever gets to that point.
By acknowledging a constitutional violation and proclaiming that you would not be “pissed off”, I think its fair to say that you are disregarding, overlooking, giving tacit approval through silence, forgiving, or excusing the constitutional violation. That’s condoning.
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p>Semantics aside, here’s a more important question. Why wouldn’t you be pissed off by a constitutional violation by President Elect Obama? Does this attitude apply to the entire constitution or only certain provisions?
it’s not. condoning is accepting it. What is there to accept right now? It’s hypothetical that anything funny happens to begin with. As I’ve already stated, chances are they work the problem out.
You – “I won’t be pissed if Obama violates the constitution”
CMD – “Its disappointing that you won’t care if Obama violates the constitution.”
You – “I didn’t say that.”
Me – “Yes you did, here’s your quote.”
You – “Fine, but that doesn’t count as condoning.”
Me – “Yes it does, here is what condoning means.”
You – “No, condoning doesn’t mean what it says in the dictionary. It means something else. And this is all hypothetical anyway.”
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p>I just think its troubling that Pres. Elect Obama doesn’t seem to be concerned about this potential constitutional violation, and I also think its troubling that some of his supporters also don’t seem to be concerned.
you – “let me make up some quotes on my own that prove you said that”
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p>me – “enjoy your 3”
and get to the more important question. You stated that even without a Saxbe fix, the only people who would be pissed off would be people who didn’t vote for Obama or Hillary. Why wouldn’t you be pissed off if President Elect Obama violated this constitutional provision? Which other constitutional provisions could President Elect Obama violate before you would get pissed off?
I don’t think it’s particularly useful to work oneself up over hypotheticals, so no, I’m not “pissed off” over something that hasn’t happened yet. If Hillary is appointed without the fix, then get back to me. Until then, however, I’m not going to work myself up into a lather over this. Please don’t confuse that with condoning it; condoning something implies at least tacit approval – and I have not given it.
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p>Since I’m dealing with reality here, allow me to explain why this is going to happen and why not even the Republicans will try to seriously block it. We have a broken constitutional provision that hasn’t been followed in over a hundred years in a country that’s terrified of actually changing the constitution, as if it would be like Christians rewriting the bible. We have two political parties that have ignored this constitutional provision for at least a hundred years (probably longer).
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p>If, suddenly, the Republicans were to ‘get religion’ and try to obstruct Hillary’s appointment over this, or even tried to discredit her because of this, then there would be a very public – and potentially brutal – backlash against the entire Republican party, outing themselves as the bitter, no-good obstructionists that they are and will almost certainly continue to be. I don’t think the GOP is that stupid, though by all means… let them tie their own noose early so we can justify altering or getting rid of the filibuster now before they have time to block something really important, like health care reform.
I meant to include that as a last sentence to my second paragraph. Regardless of what the constitution explicitly says, 100 years of how it’s been used (or, in this case, ignored) has changed the meaning into something necessarily more realistic and in the spirit of the document.
over really important stuff like semantic arguments on a blog, and not on trivialities like clear constitutional violations.
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p>I don’t care about the political aspect of this. You are probably right there. But as a lawyer with a strong interest in constitutional law I enjoy discussing and arguing over constitutional issues. In fact, sometimes I even get paid to do that. And here I’m interested in why you acknowledge the constitutional violation but are not bothered by it, and you claim that no Obama supporter or Hillary supporter is bothered by it.
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p>And are there any other constitutional provisions that are “broken” so it’s OK for President Elect Obama to violate them?
The Nixon and Clinton administrations both made efforts to cure the constitutional violation when Saxbe and Benson were nominated to cabinet posts. Are you aware of any administrations that simply ignored the emoluments clause?
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p>Professor Paulson argues that the emoluments clause is just one of the several bright line rules that create the doctrine of separation of powers. Eroding any one principle of separation of powers erodes the doctrine itself. Is separation of powers a “broken” constitutional doctrine? Professor Paulson also argues that the emoluments clause was at one time rigidly adhered to, President Washington withdrew a nomination after discovering an emolument clause problem and Senator Kirkwood’s nomination to be Secretary of the Interior was rejected in 1882 because of the emoluments clause. There is also speculation that Orrim Hatch would have been nominated to fill Lewis Powell’s vacancy on the Supreme Court but for President Reagan wanting to avoid an emolument clause issue.
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p>And I would also like to know which other constitutional provisions that you find “broken” and do not think that President Elect Obama should be subject to.
Well, each and every time the people got raises… technically, even reverting back to the former pay scale doesn’t cure the problem with the constitutional language. All of this is on theory, though, because none of this has ever reached the courts. Hence my thoughts that we should just let this play itself out. Grab some popcorn, this stuff doesn’t happen very often.
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p>Um, Obama? Really? You’re going to pin this on Obama? For starters, this is really a Senate thing. There’s a reason why they confirm picks. So if you blame anyone for real or perceived problems, it should really be the Senate. But there’s lots of constitutional provisions that we ignore. Only the legislative branch has the authority to declare war, yet here we are in two long-term quagmires in which no formal declaration of war has been declared. Even most strict constructionists would probably admit that this is not what the framers had in mind when they wrote the constitution. Things changed and we allowed (for better or worse) the interpretation of the Constitution to be loosened a bit.
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p>Clearly, with this previous administration, due process and banning cruel punishment went right out the window. I would also submit that the 14th amendment is ignored in the cases of many minorities being denied equal protection under the law. There are whole swaths of the constitution that are, for better or worse, usually ignored and not altogether enforceable. Instead of whining about it, if you have a problem with it, I suggest you demand that we fix up our document and repair some of the clauses and provisions that are ignored, don’t work or don’t work as intended. In all cases, they’ve led to looser interpretations of the constitution, or parts of the constitution being so broken that they’re not followed or worked around in ways that are iffy at best, but have become historically acceptable practice (such as the Saxby fix).
The Saxbe fix made the appointment valid, arguably at least. Your past few comments seem to assume a Saxbe fix. I’m more interested in your above comment that stated that even without a Saxbe fix no supporters of Obama or Hillary would be angry if she were nominated as Secretary of State. That’s completely different than the evolving constitutional doctrines you cited. I can’t see any argument that Senator Clinton’s appointment without a Saxbe fix would comply with the constitution. It’s hypothetical and unlikely, but you brought up this hypothetical and unlikely situation and ‘condoned’ it for yourself and for all other Obama and Hillary supporters. You seem to have backed off that statement since, so perhaps you have seen the danger in it. I think that’s the statement that caused the reaction from CentralMassDad above, and I agree with the concerns he expressed in his comment.
and the fact that you keep trying to say that I do means I’m not going to continue this discussion.
in favor of a semantic argument. I put ‘condone’ in quotes hoping that you wouldn’t get caught up on this point again. You are wrong on the semantic point, invest in a dictionary and look up condone.
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p>But more importantly, you are wrong on the underlying point. I read your original comment and thought that your position was both reduculous and dangerous, but I didn’t jump on it right away. Only after you responded with what I perceived as defensiveness and even a degree of hostility to valid and reasonable criticism did I feel compelled to point out the reduculousness in your statement that no Hillary or Obama supporter would be angry even if no attempt were made to fix a clear constitutional violation. It seems that a Saxbe fix is in the works, so it may soon be a moot point, but I am still troubled by your attitude that President Elect Obama and his cabinet can commit clear violations of the constitution without angering their base.
I have not said that I would have no problem. I said Hillary and Obama supporters wouldn’t care. You know what? The vast majority of Busy, Cheney, Palin and on and on wouldn’t care either. Hell, many wouldn’t even freaking know what’s going on. This is the America we live in, where the current President seemingly breaks the constitution daily – from all his signing statements, disregarding the role of the legislative branch, to the fact his torture policies and utter disregard for due process. And you’re going to lecture me about how people would care? Screw that – domestic spying, due to right wing framing, was freaking popular. People were applauding the destruction of the constitution.
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p>So don’t go lecturing me that I’m “condoning” something that I’m not. I simply stated the truth – that the average Hillary or Obama supporter won’t care. The truth, of course, is that the vast majority of Americans either won’t care or won’t even know about it. That’s not my opinion, or hope, just a fact. If you have a problem with that, shove off and complain to the Bush admin for all his many instances of breaking the good, intelligent parts of the constitution.
I remember the precise definition I was taught way back in the dark ages; “to allow by seeming to overlook”. FWIW.
appointing Hillary Clinton as Sec. of State under current conditions would be a violation of the constitution. The clear and unambiguous wording of the emoluments clause is not restricted to emoluments created by any particular legislature or to emoluments created by any particular administration. There is precedent that a Saxbe fix would work, although a Saxbe fix has never been upheld by an Art. III court.
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p>I guess a more basic question is this: Given that President Elect Obama won partly on criticizing the current administration’s lack of respect for the constitution, and given that President Elect Obama will soon take an oath to preserve, protect, and defend the constitution, which constitutional provisions is he allowed to violate?
to ignore the 14th amendment, so sky’s the limit? or maybe president obama will be more respectful of the constitution than candidate obama. sad that that is the level of ‘hope’ we have to stoop to for the obama administration, but he set himself up for these criticisms.
that indicates that the 14th amendment does not forbid a state from restricting marriage to opposite sex couples. Just because President Elect Obama does not agree with your view (and, as an aside, my view) of the 14th amendment, does not mean he is disregarding the constitution. On the other hand, without a Saxbe fix, I cannot think of any argument as to how Senator Clinton could be appointed Secretary of State without violating the emoluments clause. If President Elect Obama could produce a reasonable argument to support his position then that would be different, but as of now his disregard at his own constitutional violation is troubling.
can you expand on this, with links if possible?
The only pertinent precedents I’m aware of are Loving v. Virgina and Brown v. Board of Education, and they seem to contradict your assertion. But then I’m not a lawyer or constitutional scholar so don’t know much beyond the USCS’s “greatest hits”. If you can provide citations to back up what you say, I’d be interested to read further.
and follow up later. The CT Kerrigan decision held that discrimination against homosexuals should be subject to intermediate scrutiny, rather than rational basis analysis. The court cites several federal decisions holding that homosexuals are subject to rational basis under the 14th amendment. In my opinion, restricting marriage to heterosexual couples cannot possibly fail rational basis, the MA SJC’s Goodridge decision notwithstanding. I find the WA Supreme Court’s decision to be far more persuasive than Goodridge as to the proper application of the rational basis standard. However, the CT Supreme Court in Kerrigan put forth a very strong argument as to why discrimination against homosexuals should be subject to intermediate scrutiny instead of rational basis. Ultimately, reading the CT decision put me over the edge in concluding that restricting marriage to heterosexual couples is not only bad policy, but is unconstitutional.
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p>But since federal cases applying rational basis are still good law for 14th amendment purposes, I cannot conclude that President Elect Obama is ignoring the constitution with his stance on gay marriage. I disagree with his interpretation, but it is not without merit.
in Romer v. Evans the US Supreme Court applied rational basis analysis to a Colorado constitutional amendment that discriminated against homosexuals. I’m not aware of any more recent Supreme Court case addressing the level of scrutiny for discrimination based on sexual orientation.
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p>The CT Kerrigan court notes that Romer v. Evans had cited Bowers v. Hardwick, which was overruled by Lawrence v. Texas. The CT Kerrigan court questions the continued viability of cases that rely on Bowers. But even though Lawrence overruled Bowers, both Lawrence and Bowers were decided on due process grounds. Romer v. Evans, decided as an equal protection case, has not been explicitly overruled. Therefore, although its continued precedential value is not completely clear, its not unreasonable to take the position that Romer v. Evans is still the law and, therefore, discrimination based on sexual orientation is subject only to rational basis. And I don’t think its ever unreasonable to take the position that a challenge based on rational basis should fail, given the extremely high burden necessary to overturn a law under rational basis.
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p>Sort of a long and complicated answer. But that’s why I disagree with describing President Elect Obama’s opposition to gay marriage as ignoring the 14th amendment.
What I question is using an Executive Order to raise a salary. I was certain that had to be done by law. I also believe the overall point was to prevent the parliamentary practice of simultaneous service in both the legislative and executive branches. If increasing the salary by EO is legitimate then potential conflict of interest is moot. This was probably the framers’ concern, but Clinton did not vote for an increase with an eye toward benefiting from the increase. As far as I can tell this clause was not specifically addressed in the Federalist Papers, which is always my first source for what the framers were thinking.
is toss that executive order, along with many more one would reckon, out the window.
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p>Bada bing, bada boom. SoS.
It’s happened before, and Congress has just voted to roll back the salary of the position, so that there would no longer be a net increase in the salary during the Congress member’s term.
And it’s the basis of the Saxbe fix. Maybe that’s legit, maybe not. We are unlikely ever to find out, because it’s hard to come up with a scenario in which someone has standing to take this to court. Possible, but not easy.