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.