Hillary can't be Sec of State...!

[RubHer Yellow Ducky]

Hillary Ineligible for Cabinet Post?

By Caleb Howe
Nov 24th 2008 4:22PM Filed Under:eHillary Clinton, Democrats, Barack Obama, 2008 President, Obama Administration



It seems eligibility is in the news today. Via Instapundit, I read two articles, one at DailyKos and one at The Volokh conspiracy, regarding Hillary Clinton's eligibility to serve as Secretary of State for the Obama administration. My reading of the story online indicates the source of the story was the DailyKos blog.

The source of the issue is something called the Emoluments Clause, which is a clause in the Constitution that essentially states that, while a person is serving a term of office to which they were elected, he or she may not be appointed to any civil office which was newly created, or for which the compensation was increased in that same term. So because there was a pay raise given to the position of Secretary of State during Senator Clinton's current term, she is ineligible for appointment to this office.

That's not all, either. This is not, apparently, the first time the issue has come up. Multiple examples are available at the sources above, but one in particular would be pertinent in the case of Hillary. When President Nixon wanted Sen. William Saxbe for his Attorney General, he had Congress reduce the wage, which had been increased and triggered the clause, in order to get around the restriction. The maneuver has been dubbed the "Saxbe fix".
The DailyKos article urges action soon, seeming to favor a Saxbe fix. The Volokh article features two legal experts who each arrive at a different conclusion, one favoring a Saxbe fix, one opposed. The grounds of their two positions are thick in the style of attorney's writing to attorneys, but worth reading anyway.

One thing does seem clear. It is, as John O'Connor put it, "beyond dispute that Senator Clinton is currently ineligible for appointment as secretary of State." After reading three articles on the subject, thick though they are with legalese, it's hard to argue with that assessment. Hillary Clinton is, under the emoluments clause, currently ineligible for the office of Secretary of State. What will be done about that status remains to be seen.