Is Hillary Ineligible to join the Cabinet?

Posted on December 23rd, 2010 by admin1 in democratic consulting

The issue may seem esoteric but it generated attention Tuesday among legal scholars and bloggers arguing over whether it would be unconstitutional for Mrs. Clinton to serve as President-elect Barack Obama’s secretary of state because the salary for her new office was increased while she served in the Senate.

Judicial Watch, a watchdog group that made a name for itself investigating the Clinton administration in the 1990s, raised the matter Tuesday with a statement asserting that Mrs. Clinton was ineligible to become secretary of state because of the so-called "Emoluments Clause" of the Constitution. By the end of the day, Senator Harry M. Reid of Nevada, the Democratic majority leader, was consulting with Republican colleagues in hopes of putting together a bill to address the issue.

There’s something called the "Saxbe fix" that is used to address this. Essentially, the appointee takes the new office at the older, unincreased salary.

SinisterMatt: the issue is that the Emoluments Clause was intended to prevent "self-dealing": either creating a position as a Congressperson that you would later take yourself, or voting a pay raise for a position that you would later take yourself.

Since Clinton was a senator when the SecState salary was increased, she is definitely in the realm of the intent of this clause. The Saxbe fix removes this potential conflict of interest by rolling back the pay increase.

There are strict constructionists who say that the fix does not undo the literal wording of the clause. I believe the intent matters more than the wording.

5 Comments on “Is Hillary Ineligible to join the Cabinet?”

  1. grob

    Yes and no. Yes, it violates the clause. No, because there is no legal avenue to address the violation of said clause. References :

  2. HC Visigoth

    There’s something called the "Saxbe fix" that is used to address this. Essentially, the appointee takes the new office at the older, unincreased salary.

    SinisterMatt: the issue is that the Emoluments Clause was intended to prevent "self-dealing": either creating a position as a Congressperson that you would later take yourself, or voting a pay raise for a position that you would later take yourself.

    Since Clinton was a senator when the SecState salary was increased, she is definitely in the realm of the intent of this clause. The Saxbe fix removes this potential conflict of interest by rolling back the pay increase.

    There are strict constructionists who say that the fix does not undo the literal wording of the clause. I believe the intent matters more than the wording.References : http://en.wikipedia.org/wiki/Saxbe_fix

  3. George B

    This issue has arisen in the past. It will be solved this time the same way it was in the past, i.e., the salaries will be adjusted to eliminate conflict.References :

  4. SinisterMatt

    I think that the question depends on when she is getting paid and receiving said money. If Clinton resigned her Senate seat before beginning her secretary of state duties, then I don’t think that there is any case there. However, if she is being paid now while still sitting in the Senate, then yes, it may violate the clause.

    Cheers!

    ©2008 SinisterMatt. All Rights Reserved.References :

  5. Edward E

    Perfect for Obama References :

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