Aside from the issue of the wisdom of appointing Hillary Clinton Secretary of State, which I’ve discussed previously, there’s also the issue of the Emoluments Clause of the Constitution, which states, “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 encreased during such time ….”
Dave Schuler raised the issue during last week’s installment of OTB Radio and my instinct was that, since quite a number of Senators have been appointed to cabinet positions over the years, there must be some sort of workaround. Eugene Volokh has an extensive discussion of the issue and isn’t so sure.
After a lengthy discussion of the precedents and possible interpretations, he decides that the resolution should be considered in light of three questions:
- the purpose of the Clause,
- the adjustment’s being a cost-of-living adjustment that in practice prevents a real-world decrease in pay rather than being a real-world increase (irrelevant to the purely textual analysis that would apply if the text were clear but possibly relevant if the text is ambiguous and we have to resort to determining the purpose of the Clause), and
- the Saxbe fix precedent, which dates back to then-President William Howard Taft and Secretary of State Philander C. Knox and has been reinforced by President Nixon and Saxbe, President Carter and Secretary of State Edmund Muskie, and President Clinton and Secretary of the Treasury Lloyd Bentsen, though it has been dissented from during the Reagan Administration, when the Administration’s conclusion that the Saxbe fix was unconstitutional apparently helped lead to the selection of Robert Bork (and then Douglas Ginsburg and finally Anthony Kennedy) in place of Senator Orrin Hatch.
That’s pretty much where my independent musings on the subject took me as well.
It seems to me that it would be absurd to apply the Clause in such a way as to exclude Clinton. Clearly, its purpose was to prevent a conflict of interest between the branches and with a specific individual, wherein the salary was raised with the express intent of rewarding the soon-to-be appointee.
Indeed, read literally, it would preclude long-serving Senators from being sworn in as president. I don’t believe the president’s salary has been increased (let alone encreased) in the four years since Obama was elected to the Senate; it has, though, since Clinton took office in 2001, much less since McCain first went to Congress in 1981.
Beyond that, since pay adjustments now occur mostly on an across-the-board fashion through automatic cost-of-living adjustments, the original thinking behind the Clause has been essentially obviated.
The genius of the Framers was that they mostly created a fluid, dynamic system with very broad rules. Unlike most of the state constitutions and most overseas counterparts, they generally avoided legislating in the national charter. That’s why it’s so short and why it has lasted so long with relatively little amendment. The Emoluments Clause, the Natural Born Citizen Clause, and a handful of other examples, though, show the folly of addressing immediate grievances in a constitution.
UPDATE (Dave Schuler)
Please note that when I raised this issue last week I did so not in support of the idea but only to point out that the issue was bound to come up in the event of a Clinton appointment and, considering the more contentious character of our system today rather than when, say, Lloyd Bentsen was appointed and attitudes in at least some circles towards Sen. Clinton, it was almost certain to reach the courts.
UPDATE (Dave Schuler)
I’ve corrected the quotation of Eugene Volokh, above.
