Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
An obscure clause in the Constitution has some saying that it may be unconstitutional for Hillary Clinton to be appointed Secretary of State. Article One, Section Six of the U.S. Constitution says:
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.
Compensation for cabinet officers was increased in just the last year, but it was increased by executive order rather than by legislation. So does this mean that Hillary can't be nominated Secretary of State? It turns out this is not a new question. It was first encountered in 1909, when President Taft nominated Pennsylvania Senator Philander Knox to be Secretary of State.
But the Senate Judiciary Committee came up with a solution: simply reduce the compensation back down to the level it was at when Knox took office as a Senator so that the compensation had not increased from that time. The Senate passed a bill doing that unanimously, and this was later referred to as the Saxbe Fix after William Saxbe, who was named Attorney General under Richard Nixon after being a sitting Senator (thought it should, obviously, be called the Knox Fix). This fix has been used since then to get Edmund Muskie and Lloyd Bentsen into cabinet positions directly from Congress.
This clause also figured in the nominations of two current Supreme Court justices. But how could that be, since none of the current justices had prior legislative experience? Here's the story: When Chief Justice Warren Burger retired from the court in 1986, Sen. Orrin Hatch made it be known that he wanted to be nominated to replace him. Reagan did not want to appoint Hatch to the post, but he didn't want to offend him either as Hatch was a powerful member of the Senate Judiciary Committee.
So a DOJ lawyer came up with the solution of writing an opinion saying that because Hatch had voted for a pay increase for Supreme Court justices, he was constitutionally ineligible for the office. But Jan Crawford Greenburg, in her recent book, notes that this was essentially a ploy to get out of a politically inconvenient situation rather than a serious legal position. It was just a way for them to say, "Gosh Orrin, we'd love to name you Chief Justice, but that darn Constitution just won't let us."
Rehnquist ended up taking Burger's spot as Chief Justice and Antonin Scalia was nominated to take Rehnquist's Associate Justice seat on the court. The other major name under consideration: Robert Bork, who would lose an infamous confirmation battle to replace Lewis Powell on the court a year later. Which then led to Anthony Kennedy being on the court.
Legal scholars argue over whether the Saxbe Fix is constitutional or not. Eugene Volokh presents both arguments in these two posts. He quotes John O'Connor, who wrote a 1995 article on the emoluments clause, as saying that even if you decrease the compensation back down, that isn't enough because the compensation did increase while Hillary was in office even it was subsequently lowered again:
It is my view that the Saxbe Fix [] fails to remove an ineligibility for appointment. I believe the Saxbe Fix is ineffectual based on the plain reading of the Emoluments Clause and is also contrary to the intent of that clause. The Emoluments Clause provides an ineligibility for appointment to an office the emoluments of which "have been encreased." Even if the emoluments of the office are later reduced, it seems to me that they "have been encreased" during Senator Clinton's current Senate term even if they are later decreased.
But Volokh takes the contrary position himself, saying that it is reasonable to interpret the text as meaning that as long as the compensation is lowered back so it is the same at the time she takes the new office as it was when she took office as a Senator, the compensation has not increased during her time in office:
Here's my very tentative thinking: I think the phrase "the Emoluments whereof shall have been encreased during such time" is ambiguous. It could mean "shall have been increased at least once," or it could mean "shall have been increased on net." If you're thinking about buying a computer, for instance, and you ask "Has the price of this computer been increased during the last year?," it seems to me quite possible that you would mean "Has it been increased so that it now costs more than it cost a year ago?," rather than "Has it been increased at all, even if the price hike was entirely rolled back a month later?" In fact, the "on net" reading strikes me as more plausible than the rival reading.
I tend to agree with Volokh. I think his reading is more consistent with the intent of the clause, which was to prevent an elected official from creating an office for themselves or increasing the compensation for that office with the intent of then enriching themselves by taking that office. If the compensation is adjusted to be at the level it was when she became a Senator, there is no risk of that problem (add to this the fact that she didn't even vote for the increase, which I think is another factor in favoring Volokh's interpretation). Jack Balkin disagrees.
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Comments
But Ed, she's a WOMAN. The law says "he" not "she" or the ever-annoying "he/she" or even-more-annoying "s/he".
Posted by: Umlud | December 1, 2008 10:08 AM
Isn't the out just to resign as a senator?
Posted by: Jeff Handy | December 1, 2008 10:18 AM
This sounds pretty much like the discussion on the other threads about how McCain would be ineligible to be President just because he was born in Panama (or was it someone else?). It sounds like abusing an obscure, not very clear technicality in the law to try to cause some trouble.
Posted by: Chiroptera | December 1, 2008 10:25 AM
Nope. The out is to not accept the new position. ;-)
Like Ed said, it sounds like the intent of the clause is "to prevent an elected official from creating an office for themselves or increasing the compensation for that office with the intent of then enriching themselves by taking that office", so resigning from the Senate to take the position doesn't alleviate any intent of self-enrichment.
Reducing compensation to pre-term levels does alleviate that issue. Provided, of course, that those pre-term levels are maintained throughout the holding of the office. Of course, if the office is already at "enrichment" levels to begin with......
Posted by: minusRusty | December 1, 2008 10:53 AM
" I think his reading is more consistent with the intent of the clause, which was to prevent an elected official from creating an office for themselves or increasing the compensation for that office with the intent of then enriching themselves by taking that office."
Indeed. I struggle to grasp O'Connor's argument that the Saxbe Fix is "contrary to the intent of that clause", although it does seem to contradict a plain reading.
Posted by: Ginger Yellow | December 1, 2008 11:24 AM
The intent of the clause is clearly to prevent a politician from enriching herself at the public trough; Hillary is clearly not doing such, so it shouldn't matter. Whether the Saxbe Fix works or not, it is a convenient legal fiction and should be left in place.
Top government officials (judges, cabinet officers and even a few senators) are vastly underpaid compared to corporate America as is. Besides, if she needs to get rich(er), Hillary just has to invest a few grand in the Chicago Mercantile Exchange.
Posted by: kehrsam | December 1, 2008 11:25 AM
Might note that she was appointed by a person recognized as a constitutional scholar.
Posted by: Jim Thomerson | December 1, 2008 12:43 PM
Sheeeeeit, WingNutDaily is all over this story. They take it a step further and point out that the entire Obama administration is unconstitutional since he hasn't release his birth certificate. I guess the fact that it was released to the public months ago doesn't matter. At least not until Joseph Farah and his asylum inmates can travel back in time to witness the birth first hand.
Posted by: mgordon | December 1, 2008 12:56 PM
Jim Thomerson,
Constitutional scholar-- is that honorific based on an acclaimed corpus of writings on constitutional issues?
Posted by: heddle | December 1, 2008 12:56 PM
Sheeeeeit, WingNutDaily is all over this story. They take it a step further and point out that the entire Obama administration is unconstitutional since he hasn't release his birth certificate. I guess the fact that it was released to the public months ago doesn't matter. At least not until Joseph Farah and his asylum inmates can travel back in time to witness the birth first hand.
Posted by: mgordon | December 1, 2008 12:58 PM
The next step in Farrah trying to turn Obama's birth certificate into an issue is the feigned puzzlement that the mainstream media hasn't picked up on the story. 'Tis pretty hilarious.
Posted by: Russell | December 1, 2008 2:36 PM
I concur with kehrsam's use of the term "legal fiction" to describe the Saxbe fix. Clearly it doesn't satisfy the letter of the law, but just as clearly--it seems to me--it satisfies the intent of the law. O'Connor's claim that it doesn't satisy the intent seems wholly insupportable.
Of course then there's another little trick that could be employed. Appoint her with the understanding that she receives the "old" salary, then have Congress increase the salary back up to the "new" rate shortly after she takes office. That, ironically, would be wholly constitutional even though it would distinctly violate the intent of the law.
Posted by: James Hanley | December 1, 2008 2:43 PM
I must be missing something: what makes Hillary's appointment to Secretary of State any different from any other Congressperson getting appointed to any other Cabinet post? Is there some legal reason why Hillary alone is being singled out here?
Posted by: Raging Bee | December 1, 2008 3:12 PM
She has an easy out on that one. She's not a he.
Quote:
"No Senator or Representative shall, during the Time for which he was elected,"
Posted by: Supachuck | December 1, 2008 4:33 PM
Actually, this material was covered in my undergraduate constitutional law course. For what that's worth.
Posted by: Jason Baur | December 1, 2008 4:58 PM
Bee: Senators rarely pass directly into Executive Branch posts. They either spend some time in the private world, or like Tim Wirth under Clinton, didn't run for re-election prior to selection. House members don't have a problem because they face the voters often enough that salary increases aren't much of a issue.
Oh, and she's Hillary, so there's bound to be a fight.
Posted by: kehrsam | December 1, 2008 5:02 PM
Jason Baur: The Constitutional Law course in most Law Schools only covers three main issues: Federal powers, especially including the Commerce Clause; civil rights; and First Amendment issues (but only briefly). Criminal Procedure covers most of the other Bill of Rights Amendments, and Conflicts of Law gets at a lot of the nit-picky stuff.
If you go on to Law School, keep that undergrad text. It will come in handy more often than you'd think.
Posted by: kehrsam | December 1, 2008 5:16 PM
Jason Bauer,
Well, there's exceptions to every rule, eh? It's cool that your Con Law class covered that, though.
Politely contra kehrsam, I was thinking of a semi-standard distinction between undergraduate courses in Constitutional law (separation of powers, federalism) and Civil Rights & Civil Liberties (covering civil rights, First Amendment issues, and--usually--due process cases). And yet even in that more limited Constitutional Law course, I don't think this specific issue is often covered, simply because it's fairly rarely been an issue, and then not one that resulted in a case with a Supreme Court decision (or is there one I'm missing)? So I suspect Mr. Bauer's prof had a somewhat idiosyncratic interest in this particular topic. But as noted, that's cool.
Posted by: James Hanley | December 1, 2008 5:35 PM
James Hanley: No actual class covers that stuff -- wouldn't it be cool, though, to have a class about the quartering of troops and states coining money and the Emoluments Clause? The Prof gets to stand in front of the class saying the word "emoluments" (in a Carl Sagan voice, I would think) over and over for an hour -- but the undergrad textbooks often do. As I mentioned, those books are great study guides for Law School exams. Not much help with the Bar Exam, though.
Posted by: kehrsam | December 1, 2008 6:03 PM
Kurt, speaking of the bar exame, may I ask you the question I ask of every lawyer I meet?
Is the bar exam a good tool for distinguishing between those who would be good lawyers and those who would not?
Posted by: James Hanley | December 1, 2008 9:05 PM
Oh, and she's Hillary, so there's bound to be a fight.
Yeah, that pretty much explains it -- is anyone raising similar questions about Vice-President-Elect Senator Biden? (And is Hillary Obama's only appointment drawn from Congress?)
Like Ed said, it sounds like the intent of the clause is "to prevent an elected official from creating an office for themselves or increasing the compensation for that office with the intent of then enriching themselves by taking that office"...
The only instance in which I see this as a relevant question, would be if a Congressperson had been appointed to an office which he/she had supported legislation to create. And IIRC, the State Department predates Hillary by about a century or so.
As for "increasing the compensation for that office," how many Congresspersons don't have at least a pinkie in the process of giving periodic pay-raises for government officers? Is every Congressperson who voted for a cost-of-living adjustment thereby ineligible for a Cabinet post?
Posted by: Raging Bee | December 1, 2008 11:26 PM
Some questions to all you "bush lawyers" out there.
1) Did Hillary Clinton vote to CREATE the position of "Secretary of State"? or to RAISE the pay for persons in such as position?
2) Did she INTEND to become "Secretary of State" at that time? And can anyone PROVE that this was her intent?
3) If she intended to become "Secretary of State" and she voted for a pay-rise for persons in this position, why did she run so desperately for the Democrat nomination for President? Surely there are cheaper and easier ways to get appointed.
Another Wingnut inspired load of cobblers from the sore-loser brigade.
What a non-story -DJ
Posted by: DingoJack | December 1, 2008 11:40 PM
Obviously it wouldn't be a *focus* of the semester, but seriously, no class would even cover it?
The entire original Constitution is, what, 4 pages? This particular issue could be covered reasonably in a few short paragraphs (see above...) or a few minutes of class time, so it doesn't seem so crazily out of line that it would be, along with the other relatively boring stuff, before the class digs into the deeper issues.
I haven't checked textbooks and whatnot, but I suspect the folks who are saying this would never be covered in a class simply don't remember that part....
Posted by: Rob W | December 2, 2008 5:10 AM
Yeah, if bickering over obscure technicalities is the name of the game then surely Hilary isn't subject to the clause in the first place as it clearly specifies male officials only.
If the Founding Fathers had intended it to extend to females then they would have said so - the real question surely is why is wingnutdaily trying to rewrite the Constitution to further it's own ambitions? :P
Posted by: Captain Obvious | December 2, 2008 5:14 AM
mgordon:
They should petition the government of Saudi Arabia to release Barack Hussein Obama's birth certificate.
Posted by: llewelly | December 2, 2008 1:24 PM
In response to James Hanley,
I am not sure the bar exam does a very good job of seperating out those people who will be good attorneys, but what it does do is make sure that every attorney has at least a minimum level of knowledge in a lot of different areas of law. Which I consider to be a necessary part of being an attorney.
Basically I am of the opinion that while it can't tell you who will be a great attorney from a mediocre one, it can seperate out those people who are fundamentally not qualified to be one.
Posted by: Stumble | December 3, 2008 3:59 PM
"An obscure clause in the Constitution has some saying that it may be unconstitutional for Hillary Clinton to be appointed Secretary of State"
--The Constitutionis not "obscure." Nor is anything in it "obscure." I think that is an indication that something is wrong here in America.
Posted by: NoGuff | January 15, 2010 4:02 AM
NoGuff @ 27 stated:
Please provide a citation to someone claiming it was obscure. In addition, this blogger and many of his readers have spent years studying the Constitution, Constitutional law, and the philosophy, ideals, and principles related to the development and interpretation of the Constitution. We're perfectly cognizant of the immense role the Constitution plays in shaping our culture and being the dominant holding document in our judiciary. So in practice this forum argues the exact opposite of your claim.
NoGuff @ 27 stated:
Ed's point is that this particular clause has not been a basis for many cases, rulings, or interpretations. If you disagree, please point to the plethora of cases that supposedly falsify Ed's claim. Currently it appears you either fail to understand the definition of obscure as it was used in this case or want to object to an argument but are impotent to lay out a cogent case and therefore are merely waving your hands around.
NoGuff @ 27 stated:
Please provide some empirical evidence to buttress your argument specific to your comments @ 27 and the clause cited. You claim "no guff", so let's you see put something substantial up that specifically refutes Ed's argument backed up with valid citations supportive of your argument.
Posted by: Michael Heath | January 15, 2010 7:32 AM
...something is wrong here in America.
Yeah -- clueless idiots coming A YEAR LATE to a debate that's already long settled, pretending they understand something while showing no actual knowledge or insight, and pretending it proves "something is wrong" without being able to specify what.
Thanks for sharing, Skippy. Now go back to bed.
Posted by: Raging Bee | January 15, 2010 8:53 AM
Re "No Guff" @ 27's comment . . .
Actually when you closely analyze his comment, it's 'all guff'. I think a name change is in order and perhaps treatment for projectionism.
Posted by: Michael Heath | January 15, 2010 12:05 PM