Hillary to head State: Is it constitutional?

By Drew Zahn

Barack Obama, it has ... announce Sen. Hillary Clinton as his choice for secretary of state, an appointment America's Founding Fathers forbade in the U.S. Constitution.

The constitutional quandary arises from a clause that forbids members of the Senate from being appointed to civil office, such as the secretary of state, if the "emoluments," or salary and benefits, of the office were increased during the senator's

term.

The second clause of Article 1, Section 6, of the Constitution reads, "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."

During Clinton's current term in the Senate, the salary for Cabinet officers was increased from $186,600 to $191,300. Since the salary is scheduled to again be raised in January 2009, not only Clinton but all sitting Senate members could be considered constitutionally ineligible to serve in Obama's Cabinet.

James Madison's notes on the debates that formed the Constitution explain the reason for the clause. Madison himself argued against "the evils" of corrupt governments where legislators created salaried positions – or increased the salary of positions – and then secured appointments to the cushy jobs they just created. Others agreed that such tactics were evident in Colonial and British government

, and they wrote Article 1, Section 6 to prevent the practice.

Presidents in the past, however, have found a sometimes controversial way to skirt the clause and nonetheless fill their cabinet with constitutionally ineligible legislators.

In 1973, President Richard Nixon was able to appoint Sen. William B. Saxbe as his attorney general, despite the fact Saxbe was part of a Senate that nearly doubled Cabinet pay in 1969. Nixon convinced Congress to reduce Saxbe's pay as attorney general to its pre-1969 levels.

The sidestep, since known as the "Saxbe fix," was also used by President Taft in 1909, President Carter and President George H. W. Bush, who actually implemented the fix to enable Sen. Lloyd Bentsen to serve as treasury secretary for President Clinton's incoming administration.

The so-called "fix," however, has been criticized as perhaps honoring the spirit of the law but violating a clearly written statute of the Constitution.

In the 1973 case, the Washington Post reports, 10 senators, all Democrats, voted against Saxbe's appointment on constitutional grounds. Sen. Robert C. Byrd, D-W.Va., the only one of them who remains in the Senate, said at the time that the Constitution was explicit, and "we should not delude the American people into thinking a way can be found around the constitutional obstacle."

"The content of the rule here is broader than its purpose," Professor Michael Stokes Paulsen, a constitutional law expert at St. Thomas School of Law in Minneapolis, told MSNBC. "And the rule is the rule; the purpose is not the rule."

"A 'fix' can rescind the salary," Paulsen added, "but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls."

And at least one administration, that of President Ronald Reagan, chose to avoid the controversy of the Saxbe fix by striking Sen. Orrin Hatch from a short list of potential Supreme Court nominees because of Hatch's ineligibility under Article 1, Section 6.

While questions remain about the constitutionality of the Saxbe fix in Clinton's case, some bloggers – such as Professor Eugene Volokh of the UCLA School of Law and Jack M. Balkin, professor of constitutional law at Yale – have pointed out that during her term of office, Clinton did not actually vote on an increase of Cabinet salaries. A 2008 executive order from President Bush created the increase, based on cost of living adjustments, leading some to argue that appointing Clinton doesn't violate the spirit of the law in Article 1, Section 6.

Andrew Malcolm, whose blog is featured by the Los Angeles Times, however, believes the Constitution needs to be strictly followed.

"We're not lawyers. But we do speak English," Malcolm writes. "And to our eyes that constitutional clause doesn't say anything about getting around the provision by reducing or not benefiting from the increase of said 'Emoluments.'"

Malcolm continues, "It flat-out prohibits taking the civil office if the pay has been increased during the would-be appointee's elected term. Period. Which it has."