Would appointing Hillary violate the Constitution?

posted at 8:06 am on November 26, 2008 by Ed Morrissey

According to MS-NBC, appointing Hillary Clinton as Secretary of State would cause Barack Obama to violate the Constitution.  Does this mean that the Impeach Obama movement has its smoking gun?  As it turns out, probably not, since other presidents have violated the Constitution in the same way:

If President-elect Barack Obama nominates Hillary Clinton to be secretary of state, many legal scholars believe it would be the former law professor’s first violation of the Constitution as president.

Why? Because the Constitution forbids the appointment of members of Congress to administration jobs if the salary of the job they’d take was raised while they were in Congress. (Article I, Section 6: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil office … the Emoluments whereof shall have been encreased during such time.”  Emoluments meaning salaries and benefits.)

Congress voted a salary increase for the Secretary of State while Hillary Clinton served in the Senate.  Technically speaking, no member of Congress in that session would be constitutionally able to serve in any executive appointments.  Picking Hillary would violate one of the original tenets the founders included.

However, Obama would be far from the first President to run afoul of this restriction.  Nixon appointed William Saxbe to be Attorney General under similar circumstance, while Jimmy Carter appointed Ed Muskie to the same position Hillary will fill.  Her husband appointed Lloyd Bentsen to run Treasury in the last such instance.  No one ever proposed impeachment or a disqualification for these appointments, all of whom took their offices without much controversy at all.

Still, the intent of the founders is clear, and not something to shrug off so lightly.  They wanted to keep Congress from creating cushy sinecures for them to occupy when a friendly President took office.  The attraction of power, cash, and cronyism would lead to corruption and a permanent political class that would cease answering to the electorate.  The question should get asked, or Congress should amend the Constitution if no one wants to enforce that restriction any longer.

Update: Be sure to read the article I linked.  The so-called Saxbe fix sets the compensation to the point before its raise, which allowed Congress to ignore the Constitutional bar — but that’s not a remedy that meets the clear language of the Constitution itself.  The Saxbe fix would have to appear as an amendment in order to get around the explicit ban on members of Congress serving under those circumstances, and that’s probably not a bad amendment to propose, given everyone’s inclination to ignore the rule.


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sheebe on November 26, 2008 at 12:25 PM

Look on the right hand side of my link to the WY Farm Bureau site-the stop epa link is there & they provide a form letter for you to reply about this to.

Thanks Marine_Bio. We producers need all the help we can get.

Badger40 on November 26, 2008 at 1:13 PM

We producers need all the help we can get.

Badger40 on November 26, 2008 at 1:13 PM

Hey, we are all in this together, helping producers is only a small piece of it. This is so huge that it could affect every component of our lives and for what? Junk science.

Even if the magnitude wasn’t as great, I would still be commenting because I have a cross to bear with the insanity that occurs at the nexus of science, law and government policy.

Marine_Bio on November 26, 2008 at 1:21 PM

jim m on November 26, 2008 at 12:38 PM

WHOOPS — you’re right.

pambi on November 26, 2008 at 1:22 PM

Oh and one thing I forgot Sheebe, comments close Friday.

Marine_Bio on November 26, 2008 at 12:54 PM

I will say my piece too! This is serious situation. This cannot be ignored.

sheebe on November 26, 2008 at 1:54 PM

Look on the right hand side of my link to the WY Farm Bureau site-the stop epa link is there & they provide a form letter for you to reply about this to.

Thanks Marine_Bio. We producers need all the help we can get.

Badger40 on November 26, 2008 at 1:13 PM

I found it Badger. Thank you for giving me a hint. I will be writing also. These people are sick puppies. Someone needs to rid that Agency once and for all. All they do is bad things. This could destroy our Farms, Ranchers….which destroys other businesses as well. I am very worried.

sheebe on November 26, 2008 at 1:58 PM

sheebe on November 26, 2008 at 1:58 PM

Well sheebe- I never thought they’d actually get the horse slaughter ban passed, but thanks to PETA-types, there’s now no place in the USA to take a horse for slaughter.
So they ship them to Canada & Mexico where they go through hell.
I love my 20+ horses, but I’m realistic. Sometimes the colt you buy who you think is going to be great can turn out crippled or crazy, necessitating its demise into dog food.
Horses eat 2X the amount of a cow. Too expensive to keep a horse that can’t pay for itself.
So now we got cow & pig taxes-I’m thinknig there’s a good chance it could pass.
Tofu from China anyone?

Badger40 on November 26, 2008 at 2:04 PM

That individual would have veto power over the expressed will of the people.

RegularJoe on November 26, 2008 at 11:19 AM

Not if qualifying for the security clearance was required to become a candidate in the first place…well before a single vote was cast.

Doing it afterward just wastes everybody’s time.

James on November 26, 2008 at 12:21 PM

A distinction without a difference. The party in power just has to mow down ALL feasible competition, leaving only easily defeated girly-men (or manly-girls, as the case may be). It is the job of the press to investigate candidates and provide voters with information upon which to make a go/no-go decision. They just didn’t do much of a job this time around.

FWIW, I believe Bill Clinton (letter to ROTC commander, trip to Russia, anti-war protesting at Oxford) was a much better test case; but I still don’t think there’s a way to avoid subjectively manipulating the electoral process.

RegularJoe on November 26, 2008 at 2:10 PM

Here we are 9 days away from the SCOTUS deciding to engage themselves in what could be the most controversial decision in the history of the Union, and nobody wants to talk about it. What gives?

Syd B. on November 26, 2008 at 12:08 PM

I say the same thing. This is a concerning point. A process that any candidate must perform. Why didn’t BO do that? Then if it was on the news, we would know the truth! Of a Joke that Hollywood freaks, and our wonderful DNC! In the mean time, they are trying to bind side us. Ripped the Citizens Of The United States off. Biggest robbery of all! Sorry, had to spew. This joke was the most confusing one of all. They are doing their best to make us uneasy. At times I wonder if they want Us to panic? I don’t know but great question you posted!

sheebe on November 26, 2008 at 2:11 PM

It also violates the Constitution for the POTUS not to be a natural born citizen of the United States. Just sayin.

Akzed on November 26, 2008 at 2:12 PM

legal scholars believe it would be the former law professor’s first violation of the Constitution as president.

First, maybe. You can bet it won’t be the last.

JDPerren on November 26, 2008 at 2:12 PM

Badger40 on November 26, 2008 at 2:04 PM

I pray this Law does not pass! When I get home from work. I will write my say too. That is sad about the Horse Law. I had no idea. Glad that you and Badger brought this to my attention. I don’t know everything. But now I know. And, I will stand up for our rights for Meat. If I had to be a vegetarian, I would die. That is a fact. I was told by many doctors. Not all can live without meat.

sheebe on November 26, 2008 at 2:14 PM

Meat is yummy…..
BTW-I’m sure Hillary will not be bothered at all by something a small as violating the Constitution.

Badger40 on November 26, 2008 at 2:15 PM

Syd B. on November 26, 2008 at 12:08 PM

I say the same thing. This is a concerning point. A process that any candidate must perform. Why didn’t BO do that? Then if it was on the news, we would know the truth! Of a Joke that Hollywood freaks, and our wonderful DNC! In the mean time, they are trying to bind side us. Ripped the Citizens Of The United States off. Biggest robbery of all! Sorry, had to spew. This joke was the most confusing one of all. They are doing their best to make us uneasy. At times I wonder if they want Us to panic? I don’t know but great question you posted!

sheebe on November 26, 2008 at 2:11 PM

Here is an article I came across that is admitedly speculative, however, a mind numbing scenario. Fascinating read.

A DEAFENING SILENCE

It is no mystery that the leftist media have refused to mention this potentially looming Constitutional crisis in virtually all of their print and electronic coverage. Having shilled for Obama for the past two years – dismissing his longtime radical associations, obfuscating his radical voting record, and taking a pass at their jobs of vetting a presidential candidate – their failure to cover the most explosive story of the 2008 campaign speaks volumes about collusion of the highest order.

Then there are the late-night comics, as well as snarky “humorists” like Bill Maher and Jon Stewart, who take pride in being irreverent and “outing” both people and subjects that others avoid. Not a word.

But what about the failure of the powerful conservative media – how to explain their total blackout of this story? Let’s look at their reactions:

Fox News: Total Silence. Did the healthy shares that Saudi Arabia bought of Fox influence the network’s non-coverage of this story? After all, it’s no secret which candidate the Saudis endorsed! We know that TV shows, including Fox, are on a seven-second delay, the better to bleep out offensive or inappropriate material. Doesn’t it strike Fox viewers as strange that not one of their outspoken guests, even once, mentioned this story? Who warned them not to?

Rush Limbaugh: Total Silence. Why has the Excellence-in-Broadcasting’s “Dr. of Democracy” – the man who eats sacred cows for breakfast – not touched this story?

Mark Levin: Total Silence. Why has this popular radio host, commonly known as “the Great One,” abandoned his well-deserved reputation as a Constitutional scholar to studiously not address this Constitutional issue?

Laura Ingraham: Total Silence. Here is another radio powerhouse and former clerk to Justice Clarence Thomas taking pains not to mention this case…not a word!

Bill O’Reilly: Total Silence. Yes, the guy who claims he’s “just looking out for the folks”…voiceless!

Sean Hannity: Total Silence. The iconic radio and TV host who tackles every controversial subject under the sun…missing in action!

I could go on and on, but you get the picture. The very people – the so-called loyal opposition – who should have been shouting this story from the rooftops for months on end went mute. Ordinarily they would be the first to tell you that our Republic has no more precious document than the U.S. Constitution – a document that set the stage for the greatest experiment in human freedom since the beginning of recorded history. People like me – and multi-millions of others – are aware of what happens when the “salami tactics” of tyrants are employed in the service of leftwing ideology.

First, there is a charismatic character promising “change” and “hope,” but who changes his tune once in power. Second there is a whittling down of the laws of the land and the arrogant dismissal of the documents on which the nation was founded. Third there is the blacking-out of all media that disagree with Dear Leader’s message. And fourth there is the rounding-up and incarceration – or worse – of all dissidents.

This is not theory. This is history. But while both left and right media thought it appropriate to comment at length about Obama’s seven-page Questionnaire for those seeking work in his administration – a probing that makes a Pap Test, mammogram, colonoscopy, and endoscopy in one visit seem mild by comparison – not one of these cowardly journalists has asked the simple question: Mr. Obama, where is your birth certificate?

Or were they not cowards but patriots?

SCROUNGING FOR ANSWERS

I’ve written several books, not one of them fictional. And thousands of articles, not one of them based on sinister suspicions or conspiracy theories. But the case of the U.S. media’s complete non-coverage of this major story has gotten me to speculate on what – or who – may be behind this phenomenon. What force could be so powerful as to silence our country’s putative guardians of free speech – the titans of the Fourth Estate?

Perhaps the mystery goes back to 2004, when President Bush won his second term in office and in his first press conference in the White House said that he had “earned political capital and intended to spend it.”

Then – suddenly and inexplicably – he went into a year-long hibernation. He rarely appeared in public and gave no major speeches. Finally he reemerged – albeit weakly – in late November or early December of 2005

Could it be that shortly after the president’s reelection, he and major government officials received highly credible evidence from America’s ruthless Islamist enemies that they had a number of devastating (probably nuclear suitcase) weapons – set up and ready to be activated in as many as six-to-10 of our major cities – unless he (the president) tacked left and played nice for the following two years?

Was America taken hostage?

The president, one could speculate, had only two choices: (1) play “chicken” and possibly sacrifice the lives of millions of Americans and the destruction of major American cities, or (2) opt for the lesser of two evils, the second being to pave the way for a dangerous Trojan Horse – qualified or not – to capture the White House.

Could it be that the media blackout of the most explosive story of any presidential election in American history has been choreographed by none other than the current POTUS – the most powerful man in the entire world? This would certainly explain why President Bush has not “been himself” since January 20, 2005. It would also explain why the all-powerful media have taken his marching orders – including the New York Times, which takes particular pleasure in undermining and sabotaging the president, even when it comes to national security issues.

If this happened, it would have had to involve the highest echelon in our intelligence services, who might have paid personal visits to publishers throughout the United States, as well as to top TV and radio executives, who themselves would have passed down iron-clad orders – to their anchors, broadcasters, even comedians – to follow the blackout order or face Draconian consequences.

On November 4 – Election Day – the Dow was above 9,000. It is now plummeting, suggesting that even the “globalists” among us prefer tax cuts and capitalism to tax hikes and not creeping but galloping socialism – or what the esteemed Dr. Jack Wheeler insists is fascism.

Buyers’ remorse is in the air. America has been hijacked. What a price we will pay if the Supreme Court and the Electoral College abandon their oaths to uphold the U.S. Constitution by capitulating – as the media have – to our enemies. God Save America!

About the author:
Joan Swirsky (www.joanswirsky.com) is a New York-based journalist and author who can be reached at joansharon@aol.com

Syd B. on November 26, 2008 at 2:20 PM

Here we are 9 days away from the SCOTUS deciding to engage themselves in what could be the most controversial decision in the history of the Union, and nobody wants to talk about it. What gives?

Syd B. on November 26, 2008 at 12:08 PM

Simple: some of us don’t have as much tin-foil in our hats as others.

Obama has released a copy of his record of live birth (the same document I used to get my security clearance — the ONLY document most states have to issue). A contemporaneous birth notice in a Hawaiian newspaper supports the birth record. Officials of the state of Hawaii are on record confirming that Obama was born there. Even if some aunt thinks he was born in Africa, so what? Which is more reliable: an elderly womman’s memory from 47 years ago, or multiple contemporaneous documents from different sources?

The only story I can see here is why any court will bother to look at this.

Besides: I’m no fan of Obama, for certain; but suppose you manage to knock him out. Who’ll be president then, hmmm?

Be careful what you wish for!

RegularJoe on November 26, 2008 at 2:38 PM

Yes, appointing Hillary would be illegal.

Yes, Obama will do it anyway.

angelat0763 on November 26, 2008 at 2:50 PM

A distinction without a difference. The party in power just has to mow down ALL feasible competition, leaving only easily defeated girly-men (or manly-girls, as the case may be).

RegularJoe on November 26, 2008 at 2:10 PM

The NSA does security clearance investigations, not political parties.

James on November 26, 2008 at 4:23 PM

Simple: some of us don’t have as much tin-foil in our hats as others.

Obama has released a copy of his record of live birth (the same document I used to get my security clearance — the ONLY document most states have to issue). A contemporaneous birth notice in a Hawaiian newspaper supports the birth record. Officials of the state of Hawaii are on record confirming that Obama was born there. Even if some aunt thinks he was born in Africa, so what? Which is more reliable: an elderly womman’s memory from 47 years ago, or multiple contemporaneous documents from different sources?

The only story I can see here is why any court will bother to look at this.

Besides: I’m no fan of Obama, for certain; but suppose you manage to knock him out. Who’ll be president then, hmmm?

Be careful what you wish for!

RegularJoe on November 26, 2008 at 2:38 PM

Firstly, Obama’s sister, who was born in Indonesia, also has a COLB (Certificate of Live Birth), just like the one that was posted on Obama’s smear site and which, under close scrutiny by experts, is deemed to be altered. Hawaii issues these documents to parents who could prove that Hawaii was their domain. It didn’t take much to get one.

Secondly, the State of Hawaii Health Dept released an official statement which said that they had a birth certificate for Obama in their data bank and it was maintained as per the state requirements. They didn’t reveal any info, nor did they even say that they looked at the certificate. The spin from the far left blogs and media reported this story under the headline that the state confirmed Obama’s Birth Certificate. It was basically a boldfaced lie. More reason to doubt.

So, you have either bought into the Dem BS or you are knowingly passing it on to distract from the issue. Which is it?

Syd B. on November 26, 2008 at 6:30 PM

We’re speaking of the Constitution and facts like they actually mean something to libs. With Obama we’re getting Stalin-lite. Don’t forget it.

Mojave Mark on November 26, 2008 at 7:42 PM

Firstly, Obama’s sister, who was born in Indonesia, also has a COLB (Certificate of Live Birth),…

Is there also a contemporaneous birth notice in a U.S. newspaper?

So, you have either bought into the Dem BS or you are knowingly passing it on to distract from the issue. Which is it?

Syd B. on November 26, 2008 at 6:30 PM

Stupid question. Obviously I don’t believe I’ve “bought into the Dem BS”. I’m just not in denial. Sometimes my guy loses elections, and I’m big enough to accept it.

Look, since this is being investigated lets agree to accept the results of that investigation. If that means Obama is out, fine & dandy; but if they rule that this whole issue is a bunch of paranoid piddly-poop, I hope you will be willing to drop it.

RegularJoe on November 27, 2008 at 1:11 AM

Look, since this is being investigated lets agree to accept the results of that investigation. If that means Obama is out, fine & dandy; but if they rule that this whole issue is a bunch of paranoid piddly-poop, I hope you will be willing to drop it.

RegularJoe on November 27, 2008 at 1:11 AM

My original post had nothing to do with denial, acceptance, or piddly-poop. It was about the fact that a potentially historic decision was on the doorstep of the US Supreme Court, one that would be front page headlines if it involved any other President Elect, but has not received any, and I mean zero coverage by the MSM. On top of that, there have been falsehoods created such as the Hawaii Health Dept statement to which you referred. There was the doctored COLB released by Obama. Again, I’m not asking you to believe he is noncompliant, but damn, there are some strange goings on here. The press silence is downright spooky.

Syd B. on November 27, 2008 at 6:42 AM

Jut waiting on the swearing-in details. I’ll be glued to the set.

johnnyU on November 27, 2008 at 8:53 AM

Just

johnnyU on November 27, 2008 at 8:53 AM

The swearing in process is interesting. Lets say that the Supreme Court has not yet reached a decision on the compliance issue. Would SC Justice Roberts agree to swear in Obama or ask for the process to be delayed? In fact, would the SCOTUS ask that the electoral process be delayed? Its hard to comprehend that a president elect would actually be given the position with a pending SCOTUS case, whose outcome could possibly disqualify him. I’m not saying that this will happen, but it is within the relm.

Syd B. on November 27, 2008 at 9:12 AM

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