Does The Constitution Bar Hillary Clinton From Becoming Secretary of State ?

By Doug Mataconis | Related entries in Constitution, General Politics, Hillary, Law

It hasn’t reached the mainstream media yet, but in the days since Hillary Clinton’s nomination to be Barack Obama’s Secretary of State became official, there’s been some discussion of a little-known provision in the Constitution that could bar Hillary Clinton from serving at Foggy Bottom:

[S]pecifically, Article One, Section Six, also known as the emoluments clause. (”Emoluments” means things like salaries.) It says that no member of Congress, during the term for which he was elected, shall be named to any office “the emoluments whereof shall have been increased during his term.” This applies, we’re advised, whether the member actually voted on the raises or not.

In Clinton’s case, during her current term in the Senate, which began in January 2007, cabinet salaries were increased from $186,600 to $191,300.

The language of the section itself would seem to be rather clear:

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.

Since the salary for Cabinet Secretaries was increased while Hillary Clinton was a Senator, the Emolument Clause, as it’s called, would seem to apply pretty clearly.

There is a work around, but it’s Constitutionality is dubious:

That “fix” came in 1973, when President Nixon nominated Ohio Sen. William Saxbe (R) to be attorney general after the famed “Saturday Night Massacre” during the Watergate scandal. Saxbe was in the Senate in 1969 when the AG’s pay was raised.

(…)

Democrats in the past have inveighed against this sleight-of-hand. In the Saxbe case, 10 senators, all Democrats, voted against the ploy on constitutional grounds. Sen. Robert C. Byrd (D-W.Va.), the only one of them who remains in the Senate, said at the time that the Constitution was explicit and “we should not delude the American people into thinking a way can be found around the constitutional obstacle.”

Michael Stokes Paulson, a Law Professor who has written on the application of the Emoluments Clause in the past, says this regarding the Clinton appointment:

The Emoluments Clause of Article I, section 6 provides “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.” As I understand it, President Bush’s executive order from earlier this year “encreased” the “Emoluments” (salary) of the office of Secretary of State. Last I checked, Hillary Clinton was an elected Senator from New York at the time. Were she to be appointed to the civil Office of Secretary of State, she would be being appointed to an office for which “the Emoluments whereof shall have been encreased” during the time for which she was elected to serve as Senator. The plain language of the Emoluments Clause would thus appear to bar her appointment … if the Constitution is taken seriously (which it more than occasionally isn’t on these matters, of course).

(…)

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 [This appears to be a typographical error. Bentsen, of course, was Bill Clinton's first Secretary of the Treasury]. 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.

Paulson’s argument is certainly persuasive, and while it’s unlikely under present circumstances that any Court will entertain a lawsuit seeking to invalidate Clinton’s appoint, it’s fairly clear that if the words of the Constitution are supposed to mean what they say, then Hillary Clinton should not be Secretary of State.


This entry was posted on Monday, November 24th, 2008 and is filed under Constitution, General Politics, Hillary, Law. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

50 Responses to “Does The Constitution Bar Hillary Clinton From Becoming Secretary of State ?”

  1. Alistair Says:

    Good lord first, these Obama’s birth certificate and now this! The right just can’t get over the Democratic take over.

  2. Doug Mataconis Says:

    The Obama birth certificate issue is nonsense.

    Article I, Section 6 of the Constitution, however, is reality.

  3. Alistair Says:

    Doug Mataconis:

    As Rachel Maddow always says, thank you for talking me down! Please send me a copy!

  4. Jim S Says:

    If they ever do a constitutional convention hopefully we could get rid of that particular clause but it seems that it’s real and an honest debate about it should take place.

  5. SpkTruth2Pwr Says:

    Wow. This is definitely a reality that I have heard little about. The official announcement has not been made yet, though. Aren’t they waiting until after Thanksgiving holidays?

  6. Doug Mataconis Says:

    Jim,

    There was a “real and honest debate” about the Emolument Clause at the Philadelphia Convention in 1787.

    And I for one shudder in horror at the thought that there might ever be another Constitutional Convention.

    I don’t think freedom would survive.

  7. Doug Mataconis Says:

    SpkTruth2Pwr,

    Obama’s office has already said that the foreign policy team, including Lady Hillary, will be introduced after Thanksgiving.

    It will be interesting to see if the media ever picks up on the Constitutional issue at play here.

  8. Alan Stewart Carl Says:

    We know he thinks the Constitution should be viewed as authorizing judicial redistribution of wealth.

    Boy I wish Paulson hadn’t thrown that bit of deception in his analysis. In the interview Paulson is presumably referencing, Obama made the opposite argument. Kinda makes me wonder what else Paulson is giving a partisan interpretation to.

    That said, the clause is obviously real and seems quite clear in its meaning. Although it seems to have been ignored in the past, I hardly think we should be ignoring the Constitution simply because it’s inconvenient. I can’t imagine a worse argument than Nixon and Clinton did it.

    It’ll be interesting to see if this ends up getting traction.

  9. gerryf Says:

    It is an interesting argument, but it is worth noting that the cabinet is not even mentioned in the constitution, so does Article I, Section 6 refer to a position that had not even been contemplated (as opposed to the numerous positions that were mentioned)

    The only allusion to the idea of a cabinet is from Article 2, Section 2, which says that the president “… may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices. … ”

    The Constitution doesn’t specify which or how many executive departments would be created, and certainly didn’t anticipate a Secretary of State to address foreign affairs.

    Kind of a neat debate, though

  10. ExiledIndependent Says:

    Alan, Obama stated that redistribution of wealth via the COURTS was a clumsy way to do it. Presumably he views the legislature or executive branches as more efficient in equalizing wealth.

    And while we’re on those lovely little sound bites, maybe Art I sec. 6 is the fundamental flaw that persists to this day that Obama mentioned. I mean, the Constitution is really more of a group of suggestions than anything else, so I don’t see why this matters much.

  11. Some Guy Says:

    So, during the lame-duck session, the congress should pass a bill to eliminate the salary for the Secretary of State. Hillary’s rich, so it’s the power she’s after, not the salary.

  12. Ken_g6 Says:

    It seems like there’s a simple fix for this. Obama has promised to go line-by-line through the budget; well, here’s a line.

    Can’t the Secretary of State’s emoluments be un-increased? Would that require an act of Congress, or is an executive order enough to not spend money on salaries?

  13. Misschien mag Hillary Clinton helemaal geen minister worden - Sargasso Says:

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  14. TerenceC Says:

    The Emoluments clause was originally put in place as a door stop for the appearance of the revolving door of office holders in national politics. Under the original intent our nation was founded under the auspices of “citizen legislatures” – work in private practice, then do your civic duty and put in 2 years in Congress, then go back to private practice. The men of the time came from all facets of our society – very different from todays legislatures. Back then it was anathema that anyone would actually want to spend their entire life in politics – it was primarily looked at as a necessary evil. No one goes into either branch of Congress with the intention of getting rich (atleast not from holding the office directly) – it’s all about power. The emoluments clause was put in place to check that. There is relevance in this point of law where Clinton is concerned – and a strick reading of it would indicate that she must wait a year and a day. Change we can believe in starts with the belief that the law is there for a reason. Having said that, however, it is also important to consider that Madison’s move on the emoluments clause was focused on newly created government positions and the belief that elected representatives would act to create these offices, and then maneuver to take the office for themselves. That hasn’t happened in this instance – so I think the SoS position is exempt from Art 1 Sec 6.

  15. ted Says:

    Well, you have the choice of either strict interpretation, or loose interpretation.
    Loose interpretation would let her keep the cabinet position.
    But so would strict interpretation as the clause states specifically:
    “No Senator or Representative shall, during the time for which he was elected,…”
    Let me emphasize “which HE was”.
    Hillary is a “she”, not a “he”. Unless that article has been updated, strict interpretation would not apply to HER.
    ;)

  16. Doug Mataconis Says:

    Terence,

    Please point me to the provision of the Constitution that supports your interpretation.

    I’m fairly certain it does not exist.

  17. TerenceC Says:

    As I said in my post – strick reading would indicate that she must wait a year and a day. However, when reading the notes from the debate of the Constitution of

    (http://www.teachingamericanhistory.org/convention/debates/0623.html)

    1787 it is clear that the discussion was directed by Mr. Madison, Mr Sherman, and Mr Wilson to a small degree. Their concern it appears was to prevent benevolent appointments while at the same time allowing for the probable instance that the best people shouldn’t be prevented from taking government appointments. They wanted to avoid a government staffed like the House of Lords in Britain – for good reason. There was no discussion as to whether or not people could move from the Legislative branch to the Executive branch (because thee wasn’t one at the time) – it was assumed those movements would occur because those were the best people for the job as elected from all over the country. To prevent any impropriety caused by the Legislature having the ability to create and then staff government positions was the issue. George Washington wouldn’t be president until 1789. The Executive branch making cabinet appointments from a stable of experienced legislatures wasn’t ever part of the discussion – consequently those Executive appointments would probably have been exempt, but the Congress never took up the discussion again – they didn’t need to since they had oversight responsibilities.

  18. Ricardo Says:

    We don’t need no stinking constitution, we’re democrats!

  19. James Jones Says:

    Ah the Constitution went out the window years ago under Dictator Bushes Regime! no big deal!

    Jess
    http://www.anonymity.cz.tc

  20. Simon Says:

    I have to admit to mixed feelings. I started posting on this eleven days ago, and only now people are starting to wake up and say “gee, maybe there’s something to this”! If y’all read SF, you’d have known about this more than a week ago. ;)

  21. Simon Says:

    Terence, it’s fine to look into the purposes of the clause, and the framers’ presuppositions, but you can’t simply abstract from the rule to the reason and ignore the rule if the reason behind it is satisfied. The purposes and intents are not the law; the drafting history is not the law; the text is what was ratified, and it’s the text that’s the law. You can use purposive arguments to illuminate the text, but not – as your comment seems to do – to go around it. You’ve presented no reason at all why the text does not bar Clinton’s appointment, or in support of your theory that the secretary of state is sui generis.

  22. Textualist Says:

    How exactly has the Sec’y of State’s salary been increased? The total emolument provided is less than or equal to inflation.

    This is a very silly discussion, and in any event, no branch of government is expressly provided plenary authority over the construction of the emolument clause. Angry bloggers and the Supreme Court both must defer to the President, who will provide his interpretation via his appointment, and the Senate, which will provide its interpretation via advice and consent.

    Seriously . . . why are Yale trained “lawyers” such retards?

  23. Snorklewacker Says:

    You’re glossing over the terms of the fix for Saxbe’s appointment (the last time this was invoked), which was actually quite appropriate to the terminology of the Constitution. Since there wasn’t a clear sense that the pay raise during Saxbe’s term benefited him specifically (remember, he would have had to vote on the pay raise guessing that he’d later be appointed to the office), the matter was dropped, but just in case it became an issue, the legislature passed a resolution reducing his pay to the pre-raise levels.

    There seems no reason why this couldn’t be done for Hillary Clinton as well, and with a Democrat president and Democrat majorities in both houses of Congress, this would be given a fast-pass through the legislature if needs be. If it really comes up as a serious issue, that should be the fix, and it seems like a reasonable solution to the problem, if Obama (remember, he’s a Constitutional law prof, so he’s probably got an opinion on this) really regards it as an issue.

    Given that executive-branch offices didn’t exist when the article was drafted, it’ll probably be a non-issue: as has been pointed out, it was drafted to deal with Congressionally-appointed offices to prevent Congress creating cushy appointments for themselves. Applying it to the Executive branch is a tenuous argument, but if Obama genuinely respects the Constitution, he may decide to play it safe and bump her pay back down to keep within the letter of the law.

  24. pedant Says:

    nominate
    verb |?näm??n?t| [ trans. ] appoint to a job or position

    “…but in the days since Hillary Clinton’s nomination to be Barack Obama’s Secretary of State became official…”

    There has been no official announcement.

    Further, Obama is not President yet, so has no authority to nominate anyone to any office.

    If you’re going to make a technical point, it doesn’t help the credibility of the argument when it starts with two errors in the first sentence.

  25. MidNiteSk8r Says:

    Y’all can be so silly.

    For those of you who feel they are on one “side” or another:
    How many times have *your* representatives presented argument
    supporting legal interpretation of a contract or law?

    (The answer is Many Times)

    For those of you who try to transcend political affiliations:
    How many times have you wished that everyone could just get along,
    work together, and think alike?

    Oh yes…that will never happen – how did GWB joke? “This would be easier if it was a dictatorship, so long as I was the dictator.”

    Problem here is peeps, it’s no joke. This is the way our country runs (as well as much of the world). TerrenceC presents a potentially successful argument. It carries some reason that might be recognized and may prevail, particularly in these days of Constitutional Interpretation.
    As for my position, I would prefer to see interpretations that work to unify more than to divide. In this case, Mr. Obama seems to be drawing from some wise and appropriate historical lessons. I would wonder how much importance should be given to barrier created by a 2.4% pay increase. Or how much it should be allowed to continue as a barrier.
    Some Guy’s post hits the nail on the head: Reduce the pay. It would be in the interest of the People, as we also strive to uphold the law.

    Hmmm, ever notice how the current administration seems to exist in a state of continual crisis or disarray? I wonder if any party may have put this condition (the pay raise) into effect to create a barrier to appointing any member of the senate. Or…would it -more reasonably- be a simple Cost of Living Adjustment?

    Research the Context now, people.

    Hey Doug,
    the provision exists – but supporting any provision is usually done with history, reason, and context.
    http://uscode.house.gov/pdf/Organic%20Laws/const.pdf

  26. Geek, Esq. Says:

    The wording is ambiguous, and thus the purposive analysis holds. An analogy:

    Let’s assume that astronauts are subject to a strict 200 lb. weight limit at the time of flight.

    Let’s assume that Joe Smith is a 199 lb. man. He is told “If your weight increases by even one pound between now and this time next year, you can’t go up in that launch.”

    Over the next six months, Joe gains 4 pounds, but then proceeds to lose 6 pounds.

    Under the Paulson analysis, he’s ineligible to fly. Under the common sense analysis, he is.

    This kind of thing just shows the foolishness of ‘strict constructionism’ and the pretense that language is never ambiguous. A foolish consistency, etc etc.

    The Emoluments Clause sets forth a mathematical relationship between the salary then and the salary now. Satisfy that, and you satisfy the constitution.

  27. TerenceC Says:

    Simon-

    I have already stated twice that Article 1 sec 6 would bar her from SoS office if it is taken at face value – which is the only way you can take a law – don’t you read before you comment? I wasn’t presenting a legal argument as to the validity or not of the law as you presume I do – and I don’t presume to entertain that this instance is independent of other legal categorizations where caqbinet members are concerned. I simply bring up a case in point that the Executive branch had no precedent at the time of the Constitutional Convention. Consequently, there is a valid argument as to whether or not the law as strictly applied covers the resignation from one brach of government to accept an appointment to another branch – irrespective of the ~$20K pay increase. The pay increase is the problem for HC in this case – not the fact that she is a sitting US Senator. However, Bush signed an EO in 2004 (did Congres ever vote on this measure?) to increase pay for all cabinet and congressional members – it was automatic and allowed for 3.5% annual increases – which if not voted upon by Congress would have been a violation of the 27th amendment which modified Art. 1 Sec. 6.

  28. Doug F. Says:

    Congress could return the salary to the previous amount prior to her confirmation. “the Emoluments whereof shall have” [not] “been encreased during such time” This would satisfy both the spirit and the letter of the Constitution. I think Obama would appreciate that.

  29. Simon Says:

    Terence, I read, but evidently misunderstood, which – given your convoluted writing style – I think is forgivable.

    I’m not sure what to make of your last few sentences – you’re making this far more complicated than it really is. That Congress didn’t vote on the pay raise is no more dispositive than whether Clinton herself voted on it, cf. Michael Stokes Paulson, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907, 908 (1994). What is relevant is whether the emoluments – which has broader meaning than “compensation” used in the 27th Amendment of the office have increased since Clinton’s most recent term began in January 2007. They have. At very least, the salary has risen from $183,500 in 2006 to $191,300 in 2008, most recently pursuant to an executive order dated January 4, 2008, all of which is contained within the term for which Clinton was elected.

    Lastly, the theory advanced by the commenter “textualist” that no branch other than the President has authority to construe the clause is squarely athwart Marbury unless “textualist” is suggesting that this question fits within the political question doctrine framed by cases such as Baker and Nixon – in which case, let’s hear the argument. The courts have a lawsaying role, and if an action taken by Clinton gives rise to a plaintiff with standing, the courts can’t turf the issue simply because they don’t want to touch it with a ten foot pole.

  30. Simon Says:

    Doug, what you’re talking about is the so-called “Saxbe fix,” and while it might satisfy the purpose, it doesn’t satisfy the text. Mark Tushnet explains why with great concision and force: “rescinding the increase does not mean that the salary ‘shall not have been increased’ it simply means that the salary shall have been both increased and reduced during the term.”

  31. TerenceC Says:

    Simon

    It is complicated. HC may not be legally able to accept the office she was asked to serve based upon a section of Art. 1 of the Constitution. Is it your opinion that HC can’t legally accept the position offered due to a very narrow interpretation of the law? Or is it your opinion that the law is too vague for a circumstance such as this and needs to be properly and less ambiguously defined? This isn’t a parking ticket – it is by and large an ethics question. HC’s behavior since entering the Senate has been exemplary (anyone who reads the Donkle from time to time knows I am not a fan of HC at all). However, it doesn’t make much sense that an elected representative could accept a cabinet position only under the circumstances that the position isn’t a new one, and that they haven’t received a raise since the last election.

  32. Simon Says:

    Terence, it’s my position that HC can’t legally be offered or confirmed to (and can’t accept) the position until her term ends. But that isn’t due to a “very narrow” interpretation of the law – I reject that characterization entirely. It’s the interpretation that follows naturally from a fair reading of the text, one that is confirmed by the apparent purpose of the clause. (Although, to be clear, the purpose does not foreclose the Saxbe fix; the text does.)

    You say that it doesn’t make sense that “an elected representative could accept a cabinet position only under the circumstances that the position isn’t a new one, and that they haven’t received a raise since the last election,” but that is exactly what the ineligibility clause says. Unless the pay has remained the same, a member of Congress can’t be appointed to an office until the expiry of their term. Although there are high profile exceptions (Knox, Saxbe and Benson), the OLC has never treated these as authoritative (reviewing numerous opinions issued by them on the ineligibility clause’s application to various proposed appointments will confirm that OLC proceeds on the assumption that the clause means what it says, i.e. what I have said it means), and the so-called Saxbe fix has attracted bipartisan derision from sources as divergent as Michael Stokes Paulson and Mark Tushnet.

  33. TerenceC Says:

    And since the pay raises are automatic and created via an EO as opposed to a congressional vote of yea or nay, than that particular point is useless in this case. So the issue requiring legal clarification is whether or not Bush could issue an EO allowing for across the board pay increases for cabinet members and members of congress. If it’s determined that he couldn’t – than the point consistent with emoluments goes away.

  34. john Says:

    Snorkel has this correct. She can not benefit from the pay increase. She doesn’t care about that amount of money. But if the right wants to make something out of this, just ask why you are doing it. You’re pissed about Obama, Hillary’s appointment. Because I don’t think any of you think Clinton increased the SofS Salary to benefit from it. You’re follow laws, just to follow laws that don’t make any sense. Just calm down. If you think she actually did it on purpose, let’s do what tricky dick did, and it’s all good. Fricken relax hacks.

  35. Doug Mataconis Says:

    She can not benefit from the pay increase.

    That’s not what the Constitution says.

    Why am I raising this issue ?

    Because words mean things, and the words of the Constitution are the law of the land. If we play fast and lose with them here, we may as well recognize that it can happen with any other provision as well.

  36. Simon Says:

    TerenceC Says:

    And since the pay raises are automatic and created via an EO as opposed to a congressional vote of yea or nay, than that particular point is useless in this case.

    No, it isn’t. The clause doesn’t say anything about how or by whom the emoluments are increased – it is triggered if they are increased.

    To be sure, it can fairly be said that the framers must have assumed that any increase triggering the clause would be voted on by Congress, because pay would be drawn from the treasury, and would therefore require a Congressionally-approved appropriation per Art. 1 § 9. And It is entirely plausible that, had it had occurred to them that pay might be raised other than by statute, they would have written the clause more specifically.

    But they didn’t. You now ask us to perform surgery on the clause, adopting a reading that narrows what the framers wrote to what you think that they might have written had they been blessed with greater foresight – to limit the clause’s effect solely to the scope its authors anticipated. That’s the kind of ‘original expectations’ originalism that Jack Balkin has argued is bad originalism. That won’t fly. And imagine what it would mean if it did: the framers of the 14th Amendment didn’t anticipate that the equal protection clause applied to women, and many of them did not anticipate that it would require desegregation. And yet it does, because whatever the drafters intended, the original public meaning of the words in which they cast their purposes, fairly-construed, have far broader implications than they intended. I take it that you do not consider Brown v. Board or Craig v. Boren to be wrongly-decided – which they are, of course, if your theory of interpretation is applied to the Fourteenth Amendment, as it must also be.

    The better conclusion is not that Brown, Craig etc. are wrong, but that your theory is wrong. The ineligibility clause means what it says; “[i]t is the law that governs, not the intent of the lawgiver … Men may intend what they will; but it is only the laws that they enact which bind us.” Antonin Scalia, A Matter of Interpretation 17 (1997) I’m with Frank Easterbrook: “the judicial branch serves best by enforcing enacted words rather than unenacted (more likely, imagined) intents, purposes, and wills.” Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119, 1120 (1988)

  37. spike Says:

    Let’s think about the spirit of the Constitution; the clause was obviously designed to prevent self-dealing — create a job or raise a salary and get your self appointed to it. Saxbe voted to raise all cabinet salaries with no expectation he would be chosen for the cabinet; same for Hillary.

  38. Simon Says:

    Spike, I’ll grant all of that. Now tell us why that’s relevant. Is it the rule that binds, or the intentions and purposes that lead to the rule being written?

    Are Reed, Frontiero, Craig and their progeny – applying Fourteenth Amendment scrutiny to gender classifications – wrongly-decided? The only way you can avoid that conclusion is by accepting that the rule is not the intentions and purposes of its author. The Constitutional rule is what the text says and fairly implies, as it would have been understood when it was ratified; sometimes that rule is broader than the purposes its authors had in mind, sometimes it is narrower, sometimes it’s an altogether poor fit, but it is the rule.

  39. Stuartblog2 » Some stuff I read - on 11/25/2008 Says:

    [...] Donklephant » Blog Archive » Does The Constitution Bar Hillary Clinton From Becoming Secretary of …(none) [...]

  40. cuestik Says:

    Hi, have never posted here, but I think it would be prudent to read the “Federalist Papers”, specifically Madison’s #55 and Hamilton’s #76.

    They paint a clear picture of the intent of the Article and why it was written into the Constitution

  41. Charlie Says:

    Easy answer. Just lower the Secretary of State’s salary back to the level that it was prior to the increase that Clinton voted on. I’m sure she’d be willing to take a slight pay cut in order to have the job.

  42. reason Says:

    So she resigns from the Senate, and then she’s appointed. Just like Biden resigned from the senate and Obama will resign. “problem” solved.

  43. Holly Mead Says:

    Good grief! The majority of our politicians are lawyers (Hillary and obama included) and they’re going to violate our Constitution openly and blatantly???

    Oh, I forgot, obama and Hillary are democrat lawyers, so the rules that apply to normal people, don’t apply to them.

  44. Nick Benjamin Says:

    I hate lawyers. Especially textualist lawyers. They exist to give themselves work.

    I have seen no legal definition of “Emoluments” in this thread. By legal I mean a definition based on actual Case Law, and Court Decisions. The actual text does not say “salary,” it says “emoluments.” Period. So you have not proven an absolute increase in salary is an increase in “Emoluments.”

    IMO Emoluments are the net benefits somebody gets from holding an office. A cost-of-living increase does not increase those benefits, therefore Hillary’s fine. You respond that I’m full of shit. Neither of us can actually prove the point because there’s no precedent.

    Now we get to go to Court. At great cost.

    Let’s say you win. I say “OK, she’ll take the old salary, that eliminates the increase in emoluments.” You disagree.

    We get to go to Court. Again. At great cost.

    You get my drift?

    I’d flee to canada, but they’re falling prey to legalistic BS too. The government is about to lose an important vote in Parliament, which means the Opposition takes over. So the Government has declared a month-old Parliament, that has passed zero bills, is done. It won’t vote on anything. Legalistically they may be right. They may also be full of shit. All anybody knows for sure is figuring this out will be a pain, and that until it’s figured out no legislation dealing with their economic crisis can pass.

  45. TerenceC Says:

    This string is dead based upon the latest bit of news……A1 Sec 6 was taken seriously by the Congress (imagine the Congress finally taking something seriously) so they are working to reduce her pay……

    http://tpmelectioncentral.talkingpointsmemo.com/2008/12/senate_working_to_get_hillary.php

  46. Ace Tomato Says:

    It really bothers me that some people are so into this Dems vs. Republicans thing, they would throw out the Constitution to solidify the power of their party.

    The Constitution matters much more than any current politician. We replace politicians every few years. They are, to be blunt, disposable. The Constitution is not. It is the backbone of our country. It means everything.

    Seriously, if McCain had won and appointed (then) sitting Senators to Cabinet positions, this would be derided in the press as Cronyism and a travesty.

    There is a very blind loyalty to Obama that is stressful. I hope Obama does well as President – I would hope ANY elected President does well for our country – but I don’t understand how anyone could be so enamored of any politician, they would trample the Constitution to put him in power or to give him more power than the Constitution allows.

    I do not mean to compare Obama to Hitler (that’s offensive and not intended) however . . . many people have wondered since WWII how the Germans could have so blindly followed Hitler while he seized power and did some atrocious things. That’s what I see in Obama supporters – I don’t see Obama doing Hitler things, but his supporters are so powerthirsty, so determined for him to be beyond criticism, they are bluntly in favor of him maker power decisions that violate our constitution.

    That’s scary.

  47. Nick Benjamin Says:

    McCain doesn’t have any cronys in the Senate. Remember? Maverick, RINO, etc.? No cronys = no cronyism.

    The vast majority of Obama supporters wouldn’t criticize McCain for appointing Luger or Lieberman to his cabinet. We’d excoriate Lieberman (and love every second of it), but we’d leave McCain himself alone.

    Some pedantic Textualist would probably point out his interpretation of “Emolument,” and we’d have to cut Secretary Lieberman’s salary or put up with years of self-righteous whining.

    Obviously somebody would complain. This is America. There’s always one guy. And he usually gets on Cable news so there’s conflict on the panel. Nobody watches a show that has no conflict.

  48. Steven Pounders Says:

    For anyone insisting on strict adherence to the constitution, I should point out that the argument against Senator Clinton’s appointment to the cabinet falls apart constitutionally. The article only applies “during the Time for which he was elected”.

    Clearly the Framers are not addressing female senators.

    Oh … but was that really the “intent” of the framers. Shouldn’t we follow the “principle” of the constitution rather than the letter?

    Well, not as Professor Michael Stokes Paulsen likes to point out “Unless one views the Constitution’s rules as rules that may be dispensed with when inconvenient” … because “the plain linguistic meaning of this chunk of constitutional text” does not apply to women.

  49. The Intellectual Redneck Says:

    After discovering that Hillary was not Constitutionally qualified for the Secretary of State job because the salary of the secretary of State was raised while she was in the Senate, Congress and President Bush passed a bill lowering the Secretary Of State’s salary. There will likely be a federal lawsuit. I wonder if John Kerry will be the plaintiff?

    President Signs Bill Lowering Salary of Secretary of State
    December 19th, 2008

    On December 19, President George W. Bush signed Senate Joint Resolution 46, which lowers the salary of the Secretary of State from $191,300 to $186,600. SJR 46 had been introduced in the U.S. Senate on December 10, and it passed unanimously that same day. The House passed it unanimously on December 12. The reason for the bill is that Article I, section 6, says that no member of Congress may take an office if the salary for that office had been increased while that individual was in Congress. Senator Hillary Clinton was in Congress when the Secretary of State’s salary was increased in 2007. Link here.

  50. So Much for Nonpartisan « Texan4life’s Blog Says:

    [...] Another partisan move that has angered politicians and informed Americans recently is Obama’s decision to have the White House take over the 2010 Census. It seems that there were some blacks and Hispanics crying foul over Judd Gregg being in charge of the Census. Seems that their worried Gregg will not do enough to count the minorities. The obvious choice, therefore, is having the Obama Administration turn their backs on the Constitution–again. [...]

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