Does Constitution Bar Clinton from Secretary of State Job?

Constitutional Law

Does Constitution Bar Clinton from Secretary of State Job?

Posted Nov 25, 2008, 12:37 pm CST
By Debra Cassens Weiss

The authors of two law review articles on the emoluments clause say its language apparently bars Hillary Clinton from the job of secretary of state—but they doubt she will actually be ousted from the position.

The Volokh Conspiracy spoke to both authors about the impact of the clause, which bars senators from taking any U.S. civil office during their terms if it was created or its “emoluments” were increased during that time. President Bush issued an executive order earlier this year that increased the salary—an emolument—for the secretary of state.

University of St. Thomas law professor Michael Stokes Paulsen wrote on the blog that the language of the clause would appear to bar Clinton’s appointment “if the Constitution is taken seriously (which it more than occasionally isn't on these matters, of course).”

Both Paulsen and another law review author on the subject, John O’Connor, said they don’t think the problem can be fixed by a subsequent salary cut. Despite their views, Lloyd Bentsen served as treasury secretary and William Saxbe served as attorney general under a pay cut that became known as the Saxbe fix.

O’Connor says he doubts that a court would confer standing on anyone challenging Clinton, “so this is probably all just an academic exercise.” And Paulsen notes one possible “out-there argument”: The clause applies to any senator or representative "during the time for which he was elected." Perhaps female senators are exempt from the clause, he writes.

The first name of law professor Michael Stokes Paulsen was corrected on Nov. 29.

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Posted by J.D. - 1 month, 1 week, 5 days, 21 hours, 44 minutes ago

Has our Constitution turned into an “academic exercise” now?

No one has standing to challenge Hillary, huh? That’s the same argument courts are using to stop investigation into Obama’s constitutionality as president (birth certificate).

As the “national representative of the legal profession” it seems to me that the ABA would step up and defend the Constitution, no?
Posted by wolfman has nards - 1 month, 1 week, 5 days, 15 hours, 56 minutes ago

The professor you quote is named Michael, not Thomas. He was my 1L con law teacher, and a good one. Not suprised to see him engaged in this particular Constitutional issue. An issue no one except a true law geek would ever lose any sleep over.
Posted by JP - 1 month, 1 week, 5 days, 2 hours, 5 minutes ago

Since Obama was likely born in Kenya…who cares what the constitution has to say about Clinton?

Just make it up as we go.
Posted by Scott - 1 month, 1 week, 5 days, 1 hour, 46 minutes ago

“likely born in Kenya”??? Your evidence? Reasoning? Are claiming his birth certificate was forged? If only the LSAT could weed out people who don’t use logic.
Posted by J.D. - 1 month, 1 week, 5 days, 1 hour, 9 minutes ago

^ Scott, you’re right: there isn’t much evidence…. because it’s been SEALED UP! And who knows? Perhaps once the evidence has been revealed, there the conversation will be over. But until then, the speculation is justified.

Do you really believe that a person is qualified to be president simply because they CLAIM to be qualified for president? If some teenage kid decides to run in 2012 and refused to release his birth certificate or any other record, that’d be cool with you? “Well, he SAYS he’s 35, so we’ll just have to take him on his word…”
Posted by J.D. - 1 month, 1 week, 5 days, 1 hour, 7 minutes ago

Regardless of how the courts decide to rule on Obama’s citizenship issue, it’s clear as day that Hillary CANNOT serve as Secretary of State.

Case closed on that one. Certainly the esteemed Constitutional Law Professor Obama will understand…
Posted by Paul - 1 month, 1 week, 4 days, 23 hours, 23 minutes ago

One can only read .that part of the Constitution that would seem to prevent Senator Clinton from becoming Secretary of State by taking the clause out of context. The context is clear that a member of Congress cannot participate in creating a job or increasing the salary of a position and then taking advantage of that action by “jumping ship” to the position.
Posted by Lissa - 1 month, 1 week, 4 days, 21 hours, 27 minutes ago

To #7 Paul - Thanks for the clarification. The emoluments clause makes more sense now.
Posted by Thomas - 1 month, 1 week, 4 days, 14 hours, 1 minute ago

what would scalia do?
Posted by Hank Foresman - 1 month, 1 week, 1 day, 20 hours, 58 minutes ago

“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.”

I find this a very interesting discussion. I think a plain reading of the clause, clearly indicates that a Senator or Representative would not be eligible if a new office was created during their current term of service, I believe for Senator Clinton she was reelected in 2006. Given that the Office of the Secretary of Defense was created by the 1st Congress this does not seem to apply. Regarding the pay raise, given the pay was increased by Executive Order and not legislative action does this even apply. I say this as this was one of the small government clauses added to the Constitution to prevent members of the legislative for creating new positions for themselves and setting the pay thereof to enrich themselves. It was an outgrowth of the corrupt practices of the British Parliament. I would suggest that a great number of our leading Statesman would have been prohibited from positions in Government if this clause was well and uniformly applied. John C. Calhoun as Secretary of War, Justice Hugo Black and Chief Justice Fred Vinson are three whom come to mind. While intellectual purity is to be admire, I must wonder if it stands the test of our historical reality. By the way I am not an attorney but rather a historian.
Posted by Carlos the Carpenter - 1 month, 1 week, 1 day, 1 hour, 35 minutes ago

The Constitutional snag that would bar Hillary Clinton from becoming Secretary of State would be simple to fix: Have Hillary take on the job pro bono—for the good of America—and then let the Wall Street moguls, Chinese generals, Saudi princes, international bankers, etc. who own her and husband Bill cover the family multi-million dollar living expenses, as they’ve been doing for the past 35 years.
Posted by J.D. - 1 month, 1 week, 42 minutes ago

Mr. Foresman, you have overlooked the use of the word “or” in the phrase. A senator or representative is barred if EITHER of the following occurs while that person is serving: (1) the office to which s/he seeks appointment is created, or (2) the office to which he seeks appointment sees an increase in salary.

Either one alone would suffice to bar appointment of a senator or representative.

As for taking the job pro bono, it is irrelevant. The fact remains that the Secretary of State position received a raise while Hillary was serving as senator. Case closed.

The ONLY solution: A constitutional amendment. Otherwise, Obama will have to find someone else, just like presidents of years’ past have done.
Posted by CMB - 1 month, 6 days, 23 hours, 53 minutes ago

Sorry, J.D. but if you are going to take people to task for overlooking a word, then I would suggest you have missed the word “he” and last time I checked, Hillary is not a he - Oh wait, in your post, YOU changed it to s/he so that’s good enough for me, as long as YOU changed the wording of the Constitution, it must be law. Any other words you want to change?
Posted by Peter J. Gay - 1 month, 6 days, 23 hours, 40 minutes ago

You know, CMB, at the time the Constitution was written, the word “he” meant “that person,” and everyone here knows it.

Anyway, the Constitution is ignored in so many ways by the U.S. Government at this point, any given violation thereof really is purely “academic.”
Posted by CMB - 1 month, 6 days, 22 hours, 44 minutes ago

Actually, Peter J. Gay, at the time the Constitution written, the word “he” meant “he” - I don’t recall anyone that was not a “he” running for office or voting because the Constitution said “he” but they really meant “that person”. If you would like to argue that NOW “he” means “that person” than I would agree with you but at the time of writing, there was no “that person” interpretation.
Posted by HistoryGeek - 1 month, 6 days, 21 hours, 37 minutes ago

First of all I’m amazed that the crap about Obama’s birth certificate has still got legs. Go to snopes.com and do a little checking, there was even a birth notice in the local paper in Hawaii.

And those of you screaming about Hillary and her new job should remember that Bush/Cheney used double talk and legal trickery to override the Constitution since they were both from the same state and that’s a big no-no.
Posted by SME - 1 month, 6 days, 20 hours, 51 minutes ago

I’m with numbers 9 and 13. J.D. should stop commenting.
Posted by Barleyman - 1 month, 6 days, 20 hours, 28 minutes ago

If Hillary were to resign she would no longer be a Senator, no? Then she could be appointed.
Posted by J.D. - 1 month, 6 days, 18 hours, 54 minutes ago

Sorry, SME, free speech is still in existence, at least for the time being… until the left gets its way and institutes “fairness doctrine” fascism.
Posted by Close the Borders - 1 month, 6 days, 33 minutes ago

Obama has never produced his origional birth certificate. Until he does, I believe he was born in Kenya.

Obama will be our first fraudulent president.
Posted by Shawn - 1 month, 5 days, 19 hours, 19 minutes ago

Does anyone believe the Messiah will face any real challenges to his legitimacy at this point? Get serious.

And regarding the birth announcement in the paper… if I had a baby in Kenya and I wanted to get him recognized as a US citizen, I’d probably submit a fake birth announcement to the paper to help make it look legit. How in the world does that prove *anything*.

Why would anybody want their birth certificate record sealed from the public unless they wanted to hide something? Not that it matters… Obama is the chosen one and we are his people now.
Posted by bob - 1 month, 3 days, 22 hours, 27 minutes ago

Who cares what two academics wrote in a law review article?

2 more months until reperations for slavery and jim crow laws are enacted.
Posted by J.D. - 1 month, 3 days, 19 hours, 17 minutes ago

^ For the record, I e-mailed the Obama campaign during the primaries, and they assured me that Obama “does not” support reparations for slavery.

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