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.
Since this is a picky issue, an inquiring mind wonders where you got this number from. If that really is the number, only .06% of senators will consider the matter unresolved. Unless they are much smaller that I understand, “a few Republican Senators” is much more than that fraction.
Your point, however, assumes that the Senate precisely reflects the makeup of the American people. I doubt that’s the case.
99.94% happens to be exactly the fraction of statistics, quoted on political blogs, that are entirely fabricated.
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p>The Senate’s opinion matters only to the extent that some senator might conceivably vote against confirmation for this reason. As David says, the opinion that would eventually matter would be the Supreme Court’s, if someone demonstrates standing to challenge the appointment.
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p>I’ve been seeing some confusion between the “wingnut challenge” and the perfectly legitimate point about the Constitution. Without the Saxbe fix, the plain meaning of the constitutional provision would seem to make the appointment invalid — this is not terribly wingnutty even if wingnuts are making the point. With the fix, there’s still a case to be made but I (and most non-wingnuts) agree that the intent of the provision is satisfied.
Well written
I thought it was 99 and 44/100ths.
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p>I predict Senator Byrd, a Democrat, will oppose confirmation, for the same reasons he opposed Senator Saxbe’s confirmation in 1973, the “Saxbe Fix” notwithstanding:
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p>119 Cong. Rec. 38,330 (1973).
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p>You point out that it’s difficult to see the case coming before the Supreme Court. If it does–if some plaintiff can establish standing–then I predict that Justice Breyer would vote against the validity of the appointment. In 1973, then-Professor Breyer noted: “an office for which Congress has once voted a pay increase has been made more attractive through a pay increase even if Congress passes remedial legislation”). Id. at 38,331. Of course, here the pay raise was by executive order (authorized by legislation) rather than directly by legislation; but that doesn’t really change the logic of Breyer’s opinion, it seems to me.
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p>TedF
I think, however, that Breyer would vote in favor of the appointment’s validity. In recent years Breyer’s approach to constitutional interpretation has been intensely pragmatic. In this case, two factors strongly favor validity, given what I think is the indisputable intent of the clause (namely, to prevent legislators from enriching themselves): (1) the salary rollback (Saxbe fix); and (2) the fact that Congress did not itself implement the salary increase.
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p>Breyer’s 1973 testimony was overtly tentative, and I think he will have no trouble simply walking away from it. Here is Jack Balkin on Breyer’s 1973 view:
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p>Seems to me Balkin is exactly right about the weakness of Breyer’s 1973 argument — it’s frankly silly to say that what appears to have been a routine cost-of-living sort of increase somehow increased the “status and prestige” of the office of Secretary of State. I also think it likely that Breyer, upon the much closer examination he would give the issue should it come before him, will conclude that his 1973 views were basically speculation that does not survive close inspection.
You may be right on Breyer. I should probably give my own view on this, which I haven’t done so far: I believe the Saxbe Fix is constitutional. When it comes to the “structural Constitution” (the parts of the Constitution setting up the frame of government, not the Bill of Rights and similar stuff), I take the view that the executive and legislative branches have a role to play in helping to establish constitutional precedent. I also think that on a question like this a page of history is worth a volume of logic.
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p>TedF
… isn’t a function of COLA? And my employer kept telling me ‘see… you’re moving up in the world.’
Looks like the excerpt from Jack Balkin’s blog is actually written by Larry Tribe.
Sorry Larry.
It seems that executive order vs. legislation makes all the difference. If it were legislation you could argue that a given Senator voted for the increase in the hopes of personally benefiting down the line. With an executive order there is no opportunity to vote and so no conflict of interest on the part of any Senator. I assume it was this conflict of interest that the framers were trying to prevent, but without a chance to vote that point is moot.
Any emoluments clause concerns will be addressed by Saxbe style legislation and the inevitable court challenge will be disposed of expeditiously.
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p>Worthy points, however.
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I don’t agree with your statement regarding the intent of the emoluments clause. The clear wording of the clause does not apply to a particular legislature or a particular administration. Michael Paulsen’s article from 1994 convincingly, in my view, argues that the idea of “separation of powers” in the constitution is not comprised of one single rule, but is a concept cobbled together from many different clauses. The emoluments clause is one such clause, not intended simply to avoid specific instances of legislative self-dealing but worded broadly to create a separation between the executive and legislative branch. I don’t think the emoluments clause can simply be dismissed in this case because it was only intended to apply to a limited set of circumstances. You have to consider its broad wording and its role in the overall constitutional structure.
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p>But I agree with the idea expressed by TedF that the historical actions of the legislative and executive branch should act as precedent. The fact that two previous administrations and two previous legislatures decided that the Saxbe fix solves the emoluments clause problem should be strong precedent in any potential challenge in an Art III court.
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p>And I agree with David’s assessment of the likelihood that any person will have standing to bring the issue in front of an Art III court. Not impossible, but also not likely.
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p>So overall, the nomination of Hillary Clinton as Secretary of State with a Saxbe fix goes in the “Probably Constitutional and Probably Unchallengeable” category for me.
your point about the purpose of the Emoluments Clause. I haven’t read the Paulsen article, but it actually seems to me that the clause is worded quite specifically, in order to avoid a very precise form of what you call legislative self-dealing. As such, regardless of whether it is or is not part of the grand separation of powers scheme, it doesn’t make sense to stretch it beyond its text and evident purpose (as I think Breyer’s 1973 testimony did). I don’t think it has “broad wording” — I think it has very specific wording.
is that the clause is written in the passive voice, applying to any office that is created or whose emoluments is encreased. That doesn’t restrict it to only legislative self-dealing actions. That also prevents the administration from saying “vote with me on this bill, and I’ll create a special high paying position for you in my administration.” The clause acts to, at least in some way, limit a revolving door between the legislature and executive branches, thereby enforcing separation of powers. The Paulsen article makes this point quite well, I recommend reading it even though I don’t completely buy all his arguments.
I had been thinking about the passive voice issue, and how important it was. It would be interesting to know whether, in 1789, it was even possible to conceive of a non-legislatively-authorized position, created in the president’s discretion. The administrative state as we know it today didn’t exist then; however, I don’t know about the possibility of a cushy White House staff job. I think one could argue, in light of the obviously legislature-specific clauses that appear elsewhere in Art. I s. 6, as well as then-contemporary use of the passive voice, that one shouldn’t take the presence of the passive voice as an important choice, but rather what the style of the day demanded, and that the intention remains on legislative self-dealing. But I don’t know for sure — it would be a good law review article that no doubt some tenure-hungry assistant professor is toiling away at as we speak.
In this case, requiring a constitutional revision. But so what?
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p>In the absence of that or a legislative fix, can’t we just follow the law? And might that not be the reason some conservatives will vote against the Clinton nomination, not against her?
there’s no reason to think that we’ll be facing an “absence” of a legislative fix. It looks like the Saxbe fix is in the works. Most here seem to think that solves the constitutional problem; what say you?
Even if you grant all the arguments, it seems to me that all Hillary has to do is resign now.
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p>The language of the Emoluments Clause is clear: if the payrate is determined to have “been encreased” during a given senator’s term, then that senator cannot be appointed.
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p>Furthermore, the Appointments Clause says, “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls (e.g. the Cabinet) …”
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p>So the appointment doesn’t actually happen until the Senate confirms the nomination.
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p>Back to the Emoluments Clause which starts, “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office…”
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p>If Hillary resigns now, she is not a Senator and the clause does not apply. (Hey, if we’re gonna go by ultra-strict literal readings, this seems only fair.) Just as long as she resigns before her appointment (that is, confirmation).
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p>True, she runs the risk of not getting confirmed (shyeah, right), but this does seem to me to be the best way around it. No Saxbe Fix needed.
the emoluments clause applies to encreases during “the time for which he was elected,” not just the time that the Senator or Representative served in the legislature. Hillary Clinton was elected in 2006 for the period January 2007 to January 2013. The emoluments for Sec of State were encreased during that time period. The emoluments have to be reduced with a Saxbe fix and the clausemust be interpreted as applying to the net emoluments if the office.
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p>Think of it like this, you bought your house 5 years ago for $300k, it went up to $400k 2 years ago, but since it’s droppied back down to $300k. Did the value of your house increase during the last 5 years? On net the answer is no, but there were specific time periods during the last 5 years where the answer would be yes. Writing on a blank slate it might be a close call. But given the precedent, politics, and rules of standing, it’s unlikely to be successfully challenged.
The words “time for which he was elected” were no doubt chosen with care in order to avoid exactly the workaround that dcsohl suggests. Obviously, a congressperson is going to resign before taking a new post. So if resignation solved the problem, the Emoluments Clause would be a dead letter.