Hillary Clinton Nomination to Secretary of State Violates Constitution

Wasn’t Barack Obama a lecturer on the U.S. Constitution? Looks like he needs to brush up on the law of the land as his nomination of Hillary Clinton to the position of Secretary of State will be in direct violation of the Constitution as described in the Emoluments Clause (Article I, Section 6, clause 2):

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.

Breaking it down to the simplest form: A Senator or Rep can’t be appointed to any office/position which was given a pay raise during that Senator’s or Rep’s term. In January 2008 the SoS position received just such a raise, prohibiting Clinton from taking this role in Obama’s cabinet.

What’s a “change” man like Obama to do? He’ll likely follow in the steps of past Presidents who faced this same problem (Taft, Carter, Clinton, and Nixon) and repeal the raise in a move known as “Saxbe fix.” This “fix” will restore the Secretary of State’s pay to its previous amount which negates the previous raise, but doesn’t actually eliminate it from having taken place.

Professor Eugene Volokh, Professor of Law at UCLA School of Law, had this to say on “Saxbe fix”:

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

Unless one views the Constitution’s rules as rules that may be dispensed with when inconvenient; or as not really stating rules at all (but “standards” or “principles” to be viewed at more-convenient levels of generality); or as not applicable where a lawsuit might not be brought; or as not applicable to Democratic administrations, then the plain linguistic meaning of this chunk of constitutional text forbids the appointment of Hillary Clinton as Secretary of State.

I wouldn’t bet on this actually preventing the appointment, however. It didn’t stop Lloyd Bentsen from becoming Secretary of State. But it does make an interesting first test of how serious Barack Obama will be about taking the Constitution’s actual words seriously. We know he thinks the Constitution should be viewed as authorizing judicial redistribution of wealth. But we don’t know what he thinks about provisions of the Constitution that do not need to be invented, but are actually there in the document.

“Change” to fit his needs indeed. What do you think? Can Hillary accept this position knowing it goes against the U.S. Constitution? Should Obama dust off his copy of the Constitution and then find a nominee that meets the restrictions?

Source: RedState

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