Hillary Appointment to Secretary of State is Unconstitutional

danarhea · Nov 26, 2008

And here's why:

1)

Article I, Section 6: "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."

2) Secretary of State is a civil office under the authority of the United States.

3) The salary for Secretary of State was increased during Hillary Clinton's tenure as a Senator.

4) The "Saxby fix", which consists of lowering the salary for Secretary of State to what it was before Clinton's appointment, is only a transparent end-around the Constitutional requirement. The salary WAS STILL INCREASED during the time she was in office. The wording in the Constitution is quite specific.

Therefore, appointing Hillary Clinton to be Secretary of State is an unconstitutional act, no matter what circumstances surround the appointment, and no matter what gimmicks are used to attempt to give the appearance of Constitutionality to the appointment.

Republicans - Instead of trying to, in vain, smear Obama with BS, you might want to take a look at this. The Supreme Court would undoubtedly rule in your favor if this went to court, and you would have the satisfaction of having nailed Obama on something real instead of something fake. You could actually equate Obama with good ole' Tricky Dick, who first tried what Obama is now trying. Might not be a nice thing to do to Obama, but at least it would be honest, and effective too.

Article is here.

Iriemon · Nov 26, 2008

danarhea said:
And here's why:

1)

2) Secretary of State is a civil office under the authority of the United States.

3) The salary for Secretary of State was increased during Hillary Clinton's tenure as a Senator.

4) The "Saxby fix", which consists of lowering the salary for Secretary of State to what it was before Clinton's appointment, is only a transparent end-around the Constitutional requirement. The salary WAS STILL INCREASED during the time she was in office. The wording in the Constitution is quite specific.

Therefore, appointing Hillary Clinton to be Secretary of State is an unconstitutional act, no matter what circumstances surround the appointment, and no matter what gimmicks are used to attempt to give the appearance of Constitutionality to the appointment.

Republicans - Instead of trying to, in vain, smear Obama with BS, you might want to take a look at this. The Supreme Court would undoubtedly rule in your favor if this went to court, and you would have the satisfaction of having nailed Obama on something real instead of something fake. You could actually equate Obama with good ole' Tricky Dick, who first tried what Obama is now trying. Might not be a nice thing to do to Obama, but at least it would be honest, and effective too.

Article is here.

Interesting. Is this the first time in history a sitting Senator or Representative has been appointed to an executive position? That would be amazing.

cascadian · Nov 26, 2008

The Saxbe fix has been tolerated by both sides historically. I think most Republicans would be happy to have her out of Congress.

Depending upon how you read it though, it may not be unconstitutional. Does "during such time" refer to the ENTIRE time in office or does it mean AT ANY POINT during their time in office. I doesn't appear clear to me.

If the salary is lower when she leaves office, than it certainly seems to be in spirit with the intent of the article and not obviously in literal conflict. It seems rather odd and specious that the writer's actually intended it to mean "if at any point".

RightinNYC · Nov 26, 2008

You're actually right:

The Volokh Conspiracy - Hillary Clinton and the Emoluments Clause:

The Volokh Conspiracy - More on Hillary Clinton and the Emoluments Clause:

It's mostly an academic question at this point, because it's going to happen regardless of whether it's constitutional.

danarhea · Nov 26, 2008

cascadian said:
The Saxbe fix has been tolerated by both sides historically. I think most Republicans would be happy to have her out of Congress.

Depending upon how you read it though, it may not be unconstitutional. Does "during such time" refer to the ENTIRE time in office or does it mean AT ANY POINT during their time in office. I doesn't appear clear to me.

If the salary is lower when she leaves office, than it certainly seems to be in spirit with the intent of the article and not obviously in literal conflict. It seems rather odd and specious that the writer's actually intended it to mean "if at any point".

"During such time" refers to Hillary Clinton's term in the Senate, for which she was elected. Because the Salary of Secretary of State has been increased since Hillary was last elected, she is not Constitutionally eligible for that Position until 2013, when her current term expires.

DarkWizard12 · Nov 26, 2008

danarhea said:
"During such time" refers to Hillary Clinton's term in the Senate, for which she was elected. Because the Salary of Secretary of State has been increased since Hillary was last elected, she is not Constitutionally eligible for that Position until 2013, when her current term expires.

but, all she has to do is resign, right?

danarhea · Nov 26, 2008

DarkWizard12 said:
but, all she has to do is resign, right?

No - Read that clause very carefully. It was put in there to prevent members of Congress from pushing for legislation to increase the pay of a position, then resigning to take that position if the bill passes. It would clearly be a conflict of interest.

Kandahar · Nov 26, 2008

danarhea said:
4) The "Saxby fix", which consists of lowering the salary for Secretary of State to what it was before Clinton's appointment, is only a transparent end-around the Constitutional requirement. The salary WAS STILL INCREASED during the time she was in office. The wording in the Constitution is quite specific.

That seems to me to be ignoring the whole intent of the rule and relying instead on wording...but if we're going to play that game, she has an easy out:

"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."

If she resigns her seat, she is no longer a Senator or Representative, and therefore the whole passage doesn't apply to her.

cascadian · Nov 26, 2008

danarhea said:
"During such time" refers to Hillary Clinton's term in the Senate, for which she was elected. Because the Salary of Secretary of State has been increased since Hillary was last elected, she is not Constitutionally eligible for that Position until 2013, when her current term expires.

This still doesn't answer precisely when the increase is measured. My question is whether or not it is considered at the time of appointment or any time a raise is granted. I know what your opinion is, but I'd like to see why the other option would be disqualified.

I don't see how the fact that "during such time" refers to her term answers the question of whether we are talking about cumulative measurement or a spike.

Consider this scenario: the Sec. of State gets decrease in pay at the start of her term, then the office gets restored to slightly less than it's original rate just before she is to be appointed. Is that an increase in pay during such time? I can hardly see how that would be the intent of the writers.

Invayne · Nov 27, 2008

danarhea said:
Republicans - Instead of trying to, in vain, smear Obama with BS, you might want to take a look at this. The Supreme Court would undoubtedly rule in your favor if this went to court, and you would have the satisfaction of having nailed Obama on something real instead of something fake. You could actually equate Obama with good ole' Tricky Dick, who first tried what Obama is now trying. Might not be a nice thing to do to Obama, but at least it would be honest, and effective too.

What BS are you talking about? This is definitely a good thing you found, BUT...we don't really know if Obama is going to be president yet. Has anyone seen this? It's VERY long and detailed (and off topic...sorry!). But it fits under the "Unconstitutional" title.
Townhall.com - The Greater Evil

danarhea · Nov 27, 2008

Kandahar said:
That seems to me to be ignoring the whole intent of the rule and relying instead on wording...but if we're going to play that game, she has an easy out:

If she resigns her seat, she is no longer a Senator or Representative, and therefore the whole passage doesn't apply to her.

Nope - The key here is "during the time for which he was elected" - Hillary was elected for the time period January 2007- January 2013.

Jessica · Nov 27, 2008

danarhea said:
And here's why:

1)

2) Secretary of State is a civil office under the authority of the United States.

3) The salary for Secretary of State was increased during Hillary Clinton's tenure as a Senator.

4) The "Saxby fix", which consists of lowering the salary for Secretary of State to what it was before Clinton's appointment, is only a transparent end-around the Constitutional requirement. The salary WAS STILL INCREASED during the time she was in office. The wording in the Constitution is quite specific.

Therefore, appointing Hillary Clinton to be Secretary of State is an unconstitutional act, no matter what circumstances surround the appointment, and no matter what gimmicks are used to attempt to give the appearance of Constitutionality to the appointment.

Republicans - Instead of trying to, in vain, smear Obama with BS, you might want to take a look at this. The Supreme Court would undoubtedly rule in your favor if this went to court, and you would have the satisfaction of having nailed Obama on something real instead of something fake. You could actually equate Obama with good ole' Tricky Dick, who first tried what Obama is now trying. Might not be a nice thing to do to Obama, but at least it would be honest, and effective too.

Article is here.

Taken from the same article :

MSNBC adds, "The usual workaround is for Congress to lower the salary of the job back to what it was so that the nominee can take it without receiving the benefit of the pay increase that was approved while the nominee was in Congress. This maneuver, which has come to be known as 'the Saxbe fix,' addresses the clear intent of the Constitution, to prevent self-dealing."

Case closed.

Nice try at baiting.

Kandahar · Nov 27, 2008

danarhea said:
Nope - The key here is "during the time for which he was elected" - Hillary was elected for the time period January 2007- January 2013.

Right. But the whole section only applies to Senators and Representatives. It doesn't say anything about former Senators and former Representatives. If we're going to follow the letter of the law instead of the obvious intent, then it's null and void in Hillary's case anyway.

Iriemon · Nov 27, 2008

No Senator or Representative shall, during the Time for which he was elected ...

Obviously doesn't apply to Hillary, she's not male. Heh heh

RightinNYC · Nov 27, 2008

Jessica said:
Taken from the same article :

Case closed.

Nice try at baiting.

Not quite. From my link above:

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.

Professor Volokh suggested [in the e-mail requesting this response -EV] that the clause might be read so that the emoluments of an office “have been encreased” only if the salary at the time of appointment is higher than the salary at the beginning of the appointee’s congressional term. I do not think that is the best textual reading of the clause. The clause’s use of the past participle (I think that’s what it is) “have been encreased” focuses on acts prior to appointment, and not on where the office’s emoluments stand at the time of appointment as compared to some prior point in time.

This focus [on] a past act of increasing emoluments, rather than on the emoluments existing at the time of appointment suggests to me that the clause’s best reading is that an act of increasing emoluments renders members of Congress ineligible for appointment [to] the office until their respective congressional terms end.

Ethereal · Nov 27, 2008

Taken from the same article :

MSNBC adds, "The usual workaround is for Congress to lower the salary of the job back to what it was so that the nominee can take it without receiving the benefit of the pay increase that was approved while the nominee was in Congress. This maneuver, which has come to be known as 'the Saxbe fix,' addresses the clear intent of the Constitution, to prevent self-dealing."

Click to expand...

Case closed.

Nice try at baiting.

In other words: I'm a partisan, you don't agree with me and therefore you are wrong, case closed.

cascadian · Nov 27, 2008

Without a precedent, I'm not that convinced at the moment. Are constitutional scholars near unanimous on this?

RightinNYC · Nov 27, 2008

cascadian said:
Without a precedent, I'm not that convinced at the moment. Are constitutional scholars near unanimous on this?

There aren't really any experts on this, because it's an insanely obscure clause. The quote above is from the only guy I know who's written on it recently.

Jessica · Nov 28, 2008

RightinNYC said:
Not quite. From my link above:

Okay so she resigns her senate seat.
Isn't that what a republican president did once before?

Invayne · Nov 28, 2008

Iriemon said:
No Senator or Representative shall, during the Time for which he was elected ...

Obviously doesn't apply to Hillary, she's not male. Heh heh

:rofl Oh well, case closed...

Zyphlin · Nov 28, 2008

Jessica said:
Taken from the same article :

MSNBC adds, "The usual workaround is for Congress to lower the salary of the job back to what it was so that the nominee can take it without receiving the benefit of the pay increase that was approved while the nominee was in Congress. This maneuver, which has come to be known as 'the Saxbe fix,' addresses the clear intent of the Constitution, to prevent self-dealing."

Click to expand...

Case closed.

Nice try at baiting.

...Wow, my eyes must be playing tricks on me because I could've swore Dana in his first post said...

danarhea said:
4) The "Saxby fix", which consists of lowering the salary for Secretary of State to what it was before Clinton's appointment, is only a transparent end-around the Constitutional requirement. The salary WAS STILL INCREASED during the time she was in office. The wording in the Constitution is quite specific.

Oh wow. What a thought. I actually read what Dana wrote and, low and behold, he address the very thing you act like he didn't address.

And looking at all the wonderful contributions you added in your amazing post I think the only thing to really be said would be.

Nice try at bai-...scratch that...-trolling.

Dana wasn't trying to bait. He read an article and made his case in regards to the information provided in the article, including the thing you posted which he responded to directly.

Its an interesting clause and I think it'd be interesting to see someone take action on it, just to see what'd come of it.

RightinNYC · Nov 28, 2008

Jessica said:
Okay so she resigns her senate seat.
Isn't that what a republican president did once before?

Read the thread again and you'll see why that doesn't work.

danarhea · Nov 29, 2008

Zyphlin said:
...Wow, my eyes must be playing tricks on me because I could've swore Dana in his first post said...

Oh wow. What a thought. I actually read what Dana wrote and, low and behold, he address the very thing you act like he didn't address.

And looking at all the wonderful contributions you added in your amazing post I think the only thing to really be said would be.

Dana wasn't trying to bait. He read an article and made his case in regards to the information provided in the article, including the thing you posted which he responded to directly.

Its an interesting clause and I think it'd be interesting to see someone take action on it, just to see what'd come of it.

The Saxby fix has been used time and again since Nixon, but nobody has ever taken it to court because these "fixes" were kind of a "gentlemen's agreement" between the parties. Also, if one party was allowed to get away with it, the other party could do it too when it was their turn. IMHO, if the Republicans wanted to be a bit ruthless, they could take this to court, and I have a hunch that they would prevail when it gets to the Supreme Court.

Some people may think I am a real butthead for posting this thread, but this is the way our Constitution is gutted - Not all at once, but just a little at a time. People don't notice the small stones being taken out of the wall, but eventually, enough stones are removed for that wall to come crashing down around us.

If the GOP wants to put a finger in the dyke, I am all for it - Oops, I could have worded that better. Republicans have a bad enough homosexual rap as it is. :mrgreen:

Kernel Sanders · Nov 29, 2008

danarhea said:
Some people may think I am a real butthead for posting this thread, but this is the way our Constitution is gutted - Not all at once, but just a little at a time. People don't notice the small stones being taken out of the wall, but eventually, enough stones are removed for that wall to come crashing down around us.

Eh - that's a bit melodramatic. This clause probably seemed like a good idea at the time, but is really an overly permanent rule addressing something that isn't really a problem. The intent is to prevent conflicts of interest, but has such a conflict of interest ever actually been realized? I seriously doubt that Hillary (or any other official that this applied to) voted for a raise because they planned on eventually taking that post. They were just legislators who voted on routine payraises for offices that they would later with to occupy. The clause has no place in the constitution IMO.

TheNextEra · Nov 29, 2008

danarhea said:
Some people may think I am a real butthead for posting this thread, but this is the way our Constitution is gutted - Not all at once, but just a little at a time. People don't notice the small stones being taken out of the wall, but eventually, enough stones are removed for that wall to come crashing down around us. :

I don't think you are a real butthead for posting this, not at all, but the fact that the majority of Republicans in Congress aren't jumping on this means one of two things.

#1. They are ignorant of what you are saying.

#2. You are not correct.

Take your pick. But given how Republicans could jump on this, but aren't, I would have to say the reality is #2 somehow. I don't know how to refute you, but it seems like #2 is the most coherent choice IMO.

Hillary Appointment to Secretary of State is Unconstitutional

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