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Hillary Clinton's Cabinet Eligibility

[ Posted Thursday, November 20th, 2008 – 17:18 UTC ]

Is Hillary Clinton eligible to become Secretary of State? Putting aside the question of what her chances of being appointed actually are (which I wrote about yesterday), is she even legally able to take the job if offered? The answer appears to be a strong "probably."

The question sounds like a technicality, but it is a technicality which comes straight out of the original text of the Constitution, which raises its profile a bit. From 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.

"Emoluments whereof" means salary, in this instance. And the Cabinet members' pay has increased, during Hillary Clinton's current Senate term, from $183,500 to $191,300. Meaning, by law, she cannot serve in the Cabinet.

Or so it would seem. There are a lot of loose ends to this story, and a few historical cases where the rules were bent to allow exactly the same thing to happen. Now, the Constitution is clear on the issue, which was meant to ban Congressmen from creating plum jobs for themselves, and which is why it is known as both the "emoluments clause" and the "sinecure clause" to the Constitution. But that hasn't stopped previous bending of the rule, and likely won't stop this one either.

The first example I could find happened in 1909, when Senator Philander Knox was named Secretary of State by President Taft. [While it may amuse some to have a story about both a Clinton and someone named "Philander," this column is, of course, above such sophomoric behavior. Ahem.] While Knox had been in the Senate, the salary of Cabinet members had been raised from $8,000 to $12,000 (a whopping 50% raise!). There was some debate in Congress over the issue, but they solved the problem by rolling back the Secretary of State's salary while Knox served.

This, it has to be said, can easily be considered unconstitutional, since the Senate had already voted to raise the pay (and Article I, Section 6 makes no mention of allowing subsequent rollbacks). But, while some fought his appointment, it eventually went through. [You can actually read a contemporaneous newspaper article from the New York Times, which is impressive since it means the Times has online archives all the way back to 1909. Download the article in PDF format.]

But this isn't the only instance of bending this particular clause. In more recent times, Richard Nixon ignored the provision once again to appoint Senator William Saxbe as Attorney General (after the infamous "Saturday Night Massacre"). Nixon asked Congress to roll back the salary, and they complied. The maneuver is even now known as "the Saxbe fix." Later on, George H.W. Bush allowed Congress to repeat the same shenanigans -- during his lame-duck period -- to allow incoming President Bill Clinton to appoint Lloyd Bentsen as Treasury Secretary.

In other words, there are lots of precedents for this particular end-run around the spirit and the letter of the law.

It may not even really be a problem. As far as I can find out, the raises in pay for Cabinet members (one in 2007, one in 2008) were nothing more than cost-of-living adjustments (COLAs). Technically, the Senate voted on the budget, but they didn't actually go out of their way to provide Cabinet pay raises. And the Supreme Court has already weighed in on a similar problem -- the blatant defiance by Congress of the Twenty-Seventh Amendment, which has happened pretty much every single year since it was ratified. The Supreme Court ruled that COLAs were somehow not "raises" and therefore the plain language of the Amendment somehow didn't apply. With that as a solid precedent, it seems that Senator Hillary Clinton wouldn't have much problem ascending to Secretary of State. Some Republicans might whine during her confirmation hearings, and they may force her to take a pre-2006 salary, but other than that, I really can't see it completely disqualifying her for the job.


[Note: For more on this story, see the Washington Post blog "The Trail," or for an opposing viewpoint with dense legal reasoning, see this article from the "Stubborn Facts" blog.]


-- Chris Weigant


13 Comments on “Hillary Clinton's Cabinet Eligibility”

  1. [1] 
    Michale wrote:

    Well, it looks like it wasn't a red herring..

    Clinton Is Said to Opt for Secretary of State Position

    Although it still could be a "mixup" in communications again. Seems a lot of that goes on between the Obama and Clinton camps.

    If true, I am deeply disappointed in PE Obama. This can only mean bad things for the country..


  2. [2] 
    Elizabeth Miller wrote:


    I'm inclined to agree with you...wholeheartedly. This is going to be a very big - make that HUGE - disappointment for me...unless I have completely misjudged what she is all about AND her relationship with PE Obama.

    But, if Obama and Biden think that she should be the next SoS, then who the heck am I to second guess that decision. I have complete faith in Joe Biden and a fair level of faith in Barack Obama...I guess we'll just have to give the both of them the benefit of the doubt on this appointment...and hope for the best.

  3. [3] 
    Michale wrote:

    True... I have said on many occasions that we don't have the whole story and we should trust those who do.

    But, in this case, it's not an issue of knowledge... It's a knowledge of character..

    Clinton does NOT play well with others in a subservient roll.. She must be equal or in charge..

    I seriously cannot see her being subservient to Obama's will. I see it MORE likely that she will sabotage Obama's presidency at every opportunity thus insuring a real shot at the 2012 nomination.

    Obama is too much the virgin politician to keep someone like Clinton in check..

    I hope I am wrong..


  4. [4] 
    Elizabeth Miller wrote:


    I think our impression of Hillary Clinton is close to the truth of the matter.

    Which is not to say that she won't be a great SoS, just not likely.

    I just heard David Gergen say, with a straight face and very matter-of-factly with no response from the rest of the panel, that if Hillary is SoS, then she will have a harder time running against Obama in 2012. Say what!? I mean, he was actually suggesting that it was a given that she would be challenging the President in 2012 and that if she was SoS that challenge would be more difficult.

    Is there something that I'm not getting here?

  5. [5] 
    Michale wrote:

    Barring any major character catastrophe, Clinton will fight Obama for the 2012 nod..

    As SecState, Clinton will have a very unique oppurtunity to frack up Obama's administration and in doing so, really frack up the country.

    But, of course, we can count on Hillary's love of country and her ability to put the needs of others before her own wants and desires..


    Oh god, we're so fracked...


  6. [6] 
    Elizabeth Miller wrote:

    Well, then...'fracked' doesn't describe the half of it. This is quickly turning into a bloody farce and, frankly I don't want any part of it. It will be so easy to walk away from this - you have no idea.

  7. [7] 
    Michale wrote:

    Just think how entertaining the next four years is going to be..

    And the coup de grac'e will be a Dem Primary that makes 2008's look like a tea Party by comparison!

    It's going to be a fun time, to be sure...


  8. [8] 
    Elizabeth Miller wrote:

    Count me out...that kind of fun I can do without. If there is a Dem presidential primary in a couple or three years, then I am done with US politics.

  9. [9] 
    Michale wrote:

    Aww com'on...

    There's only one thing funner than watching the GOP implode in 2008...

    That's going to be watching the Democrats implode in 2012.... :D


  10. [10] 
    Elizabeth Miller wrote:

    You com'on! :D

    Seriously, I'm still hoping our pal Chris is right about this whole thing being no more than a red herring.

    If it was just a matter of watching one or the other party self-destruct, that would be one thing. But, there are soldiers dying in Afghanistan and Iraq due in no small part to an incompetent US administration. I know it won't be fun for you, either, to watch the continuation of that sad state of affairs just because the Democrats fail to get their act together.

  11. [11] 
    Michale wrote:


    I tend to forget that this isn't a Sitcom, that it has disastrous real world implications..

    But the hypocrisy just never ceases to amaze me. Present company excepted, of course... :D


  12. [12] 
    Michale wrote:

    By the bi, here's another post by that guy, Grande Lum..

    THIS is how TRUE liberals are supposed to be..


  13. [13] 
    Elizabeth Miller wrote:


    Sometimes we get so wound up in these issues that it's easy - I hate to say 'easy' but you know what I mean - to forget that they are life and death issues!

    As for the Grande Lum guy, I could give him the names of a few blog sites where his services are very much in need. Over the course of the election campaign I tip-toed in an out of a few of them...very, very scary!

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