Is Hillary's appointment unconstitutional?

Could Hillary Clinton's appointment be unconstitutional? Ben Smith thinks it could be:

With Hillary's expected appointment tomorrow comes a round of buzz about "emoluments" and specifically the question of whether, under a fairly straightforward reading of the Constitution, her appointment isn't constitutional.

At issue is Article I, Section 6, which says, "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." That is, if the Cabinet, or other, post got a pay hike during the term of the senator, the senator couldn't take the job. During Clinton's Senate term, Bush raised the Cabinet's pay.

And there are serious lawyers who see this, legally speaking, as a real obstacle.

However, there have been other occasions when this has arisen - the appointment of Llyod Bentsen as Treasury Secretary for instance. The solution is to cut the salary of the incoming Senator/Secretary.

Comments

[Tony Francis]

One might think a professor who taught constitutional law would be aware of this. Maybe Professor Obama skipped that class. After telling us for a year Hillary was totally incompetent in foreign affairs, he places her in charge as the Secretary of State. At least we won't have Bush shredding the constitution any more. It will be Obama. After telling us we couldn't afford four more years of the same, Obama keeps Bush's man Robert Gates in charge of Defense. As Obama has just said, it is "change that brings us to a new beginning." Whatever.

[Brennan]

Dan: One of the conditions of appointment would be that she give up her seat in the Senate.

[Nona]

This has happened before and the solution was to simply lower the SoS salary down to what it had been previously.

Re: Change. Anyone who believes a candidates campaign promises is extremely foolish. That's why a candidates record is the best indication of who they are. Obama has a very thin record.

[David]

Brennan...her resigning from the senate is a given..her being SoS is what's the problem. HUSSEIN'S 'CHANGE' = from republican to democratic administrations = same o same o in Washington.

[Ulrike]

What a pity many people cannot measure the really new quality of Obama - reaching out to rivals and opponents if they have something valuable to contribute, well, if that isn´t change, what is?And if he was hell bent on total discontinuity that wouldn´t be such a great idea either - considering the economic threats and the threat of terrorism and instability of the East.Trust Mr Obama to be a really smart guy.And Rome wasn´t built in one day!

[Jeff]

It is easy to understand how Obama could have overlooked this if he wasn't around for half of the votes in the Senate and he voted "present" the other half.

[GarsLuber]

the constitution clearly says 'he'.

Thus, Hillary is not covered in the reading.

But beyond that point, it seems that I've run into yet more bitter Chicken Hawks.

And yes, you can thank us for not electing that fool, McCain.

[Mercury]

Did someone mention the Constitution? What about the appeal to the Supreme Court to finally answer the question whether he is even allowed to be President - is he actually a natural born citizen - an issue the DNC has evaded for months. Will Philip Berg prevail?

[Ken]

Ahhh... the bitter tears of Republicans... is there anything sweeter?

[Abiy in OH]

Call him what you will -he is the President ruling you. Period.

As for the qualifications, I can't even begin to imagine how McSame would have made cabinet appointments (full of Lobbysts) or dealt with the financial crisis (suspending presidency, perhaps?)

Thank God for Obama

[Greg M]

Those of you who actually believed this liar and fraud of a candidate deserve everything you get. He said anything that would get him elected, promised the world and all the while said absolutely nothing. Chanted the mantra 'Change' and 'Hope' but without any ideas that had substance.

It will be really interesting watching the media who lied, scammed and covered up for him, turn and twist in the wind as they try to distance themselves when he screws up. It will happen, it's only a matter of time. It will be like watching a auto wreck in slow motion as he twists and turns doing 360's, 180's and slide outs trying to please all those he is beholding to.

You get what you vote for. Don't screw up, we'll be watching as you have no excuses now.

"The democracy will cease to exist when you take away from those who are willing to work and give to those who would not."…Thomas Jefferson

[AL GORE]

i invented Article I, section 6.

[Montana Cowhand]

Tony F: BO was never a constitutional law professor -- he was a special "series lecturer," which means he shows for a couple of hours and spews his "living constitutional babble" uncontested. But since when does the press report unbiased facts...

[Chris]

If it is unconstituional, the only remedy would be for her to return her "benefits" back to the treasury. I think that the power of the president to appoint, with the advise and consent of the Senate, would allow her to serve in office and would make her appointment consitutional. The amount of her actual salary and the acceptance of that salary would be an issue. Mrs. Clinton, in her personal capacity would also have a personal claim against the government under the 5th amendment if her salary was taken without "just compensation"--she would have to file that in the Court of Claims, though.

[Phil]

I really had hoped the Cinton's days in the sun were over. Obama has just embellished her weak resume! It will be a national joke trying to control Bill's escapades.

[elizabeth schumann]

Nice to read Nona's intelligent comment. Pity all those other voters in America thought they were smarter than her.

[ted Cory]

Lawyer to housewife to 3 years a senator to Secretary of State. I don’t see where she has any experience to be Secretary of State at all. No even close, but Obama’s appointments are Chicago politics as usual. “What have you done for me and what I will do for you”. Not what is best for the people.

[Jim Cummings]

Omama has a thin record??? Only if you count his present votes. Without those, he has none.

[John]

It's a distraction from the real serious issue that Obama himself is not allowed to be President Constitutionally since all he can produce is a forged non-vault copy of a Hawaiian Birth Certificate. Everybody watch Hillary while the press whitewashes the 20 plus lawsuits against Obama and does not mention them.

[Angela]

Skirting the law certainly isn't the same as obeying the law. The law says clearly that if the salary was raised, then she can't take the job. Pretending the salary wasn't raised because it is easier than amending the constitution is just sleazy, as-usual politics.

And resigning her seat won't matter. The law was composed to prevent just that, and as such prohibits her from taking the position until the term she was elected to complete ends.

Change? This is no change. This is just another example of the Washington elite flaunting their utter lack of respect for the law.

[Rovja]

Maybe we should get rid of the word "emolument". Who uses it anymore?

[Rovja]

As for Hillary Clinton? Obama will likely use the "Saxbe fix" and people will go back to ho-humming the issue.

[Alex S.]

The real question is what exactly is "Emoluments" in 2008. One could argue since the Clinton's compensation from outside the Senate (far more than her Senatorial salary), the Emoluments Clause does not apply.

The idea that a $30,000 increase would somehow be some sort of decisive financial advantage for Clinton doesn't hold water. An emolument may be better characterized as an advantage when referring to compensation. The argue is a hard sell when you look at the total income of the Clinton's.

[Jeremiah]

Tony: Maybe Obama, being a constitutional law professor, knew that by lowering the pay rate of the cabinet position he could appoint Clinton. Perhaps that's why the University of Chicago School of Law hired him and not you.

As for keeping Gates. It would be idiotic for Obama to get rid of the one person who has the most experience in Iraq. Plus, Obama has asked that he stay on for "at least one year"...clearly indicating that he doesn't intend to keep Gates beyond the time necessary for carefeully formulating and beginning an exit from Iraq.

As for David, why don't you refer to Obama by either his first or last name, rather than repeating his middle name over and over in the hopes that if you say it enough Obama will magically turn into the radical Islamic terrorist that your fox-news-fed paranoia needs him to be.

Finally, why don't we wait and see exactly how Obama goes around destroying democracy, moral values, and the world BEFORE we try to predict it.

[Martins Emeje]

is there ANYTHING a MAN can ever do on this earth that will be PLEASING and ACCEPTABLE to ALL? Am a STRONG Mcain fan, but for God's sake,election has been won, lets leave Obama alone.We will ask his supporters in 4 years time

[Ron]

As a lawyer, I can tell you that what people are trained to do in law school is to understand the Constitution just well enough to be able to do end runs around it. As pathological liars, Obama and Hillary are a disgrace to the legal profession.

[Dan]

Unconstitutional? No problem! Americans have put the democrats in power, and they won't let a little thing like The US Constitution get in the way of turning our country from super-power into a French style socialist has-been nation. Not only is the US in trouble, the whole world is too.

[Felix]

Obviously, many of the commentators here are neither American lawyers, politicians, or technocrats; that is why they jump into some issues with both feet. They make for good hearty readings, though.

Condoleeza Rice was a college Provost; her only qualification was being a "soviet" not Russian expert and a classical music pianist, yet she made a good Sec. of State. What are David Millibands (?) qualifications to be Foreign Secretary?

You all should not worry, Hillary will do well.

[Rick]

I didn't support President elect Obama; a lot of things came out about him that I don't like. BUTTTTTTTTT he was elected the President, therefore I have no choice but to support him. If he blows it, well in four years we can vote for someone else. Maybe at that time people in this country will learn to think for themselves and not let a bias media think for them. For the liberals that are crying about him keeping some of Bush’s cabinet members grow up and get out of fantasyland. Were in the middle of a war we cannot just pull out. Do a little research on Iran and the Middle East. I now have more respect for President elect Obama and his decision making abilities (which I was a little concern about from some of his past statements). As far as Clinton goes thank god get her the hell out of New York. Senator Hillary Clinton started her listening tour when she first ran for the Senate in New York and as far as I know she is still on it. I once called her Albany office for help with a problem and when I asked who I was speaking with, the gentleman told me his name was John uh Smith. Plus you have to like Bill he is a funny guy and he was a decent President.

[Mud Grunt]

I am struck by the posting by "Abiy in OH' - "Call him what you will -he is the President ruling you. Period."
The President of the United States does not "rule" the United States. The President is not a king. The President works for the citizens of the United States providing leadership and working with the other branches of the government to oversee the use of the resources of our nation.
Democracy is a fragile thing. The strength of a Democracy is dependant upon the understandings, preceptions and expectations of it's citizens. It is significant that the citizens of the United States expect a President that works for them; that when they elect a President they are hiring someone to perform an important job for them.

[LeslieT]

To Greg M and some others,
Do you really believe the bull that you are saying? Obama has not even taken office yet and already you’re making dumb comments about his presidency. Short of blowing up the world I do not think that he can do any worst then our current president. It is a shame that some of the good that Bush has done is overshadowed by the MANY bad, but it is a fact. 8 years of it in fact. Now, let’s just sit back but be ready to act and let our president-elect show us what he can do.

By the way everyone questions Obama birth place but one has ever mentioned McCain being born outside the US in Panama City. Hmmm? Congress made a law a few years back to allow him to run for president. No one questions his citizenship because he and his family fought for our country. My point is if either man was not eligible to run for president (bipartisan) congress would have caught it early on.

Also, all politicians lie. That is part of the job. The question is how big of a lie and how often is it done. But honestly we are all upset about something in this last presidential election and so on. McCain lost, Sara Palin…, Clinton losing to Obama, Democratic winning majority, Obama appointing Hillary to SoS and so on. My point is lets us all call it truths for about at least a year or so to see how this new administration helps the majority of people hopefully the middleclass and the struggling families and the small business owners while not totally leaving out the big enterprises in wall street (making them more responsible for their actions and not letting them pass the consequences on to the little guy).

[kris]

surely the clause is a separation of powers point. Doesn't "during the time he was elected" cease on resignation?

It's arguable. If the Senate thinks its a problem, they will not confirm Obama's nomination.

But bitter, sore loser Repubs, I wouldn't be holding my breath.

[Cathy J. Begay]

I commented before that Obama was advised by some of his campaign people not to consider Hillary for an appointment due to some foreseeable problems. I felt that that her appointment was more worry than its worth. Obama could have appointed someone with more experience and less headache.

[Patrick]

Gotta love those pesky little Constitutional details! Speaking of which, I've read that during the civil war between King Stephen and the Empress Maude, one Hugh DeSpencer was "taken in arms against the king and attainted of treason." After being terminated with extreme prejudice, the Commons passed a measure barring his descendants from the throne. So what's the constitutional status of Prince William?

[a knight]

There are several precedents other than Clinton's appointment. It was first done in the administration of William Howard Taft for his appointment of Philander C. Knox to be Secretary of State in 1908. Nixon did it in his appointment of William Saxbe to be Attorney General, and acting attorney general, Robert Bork argued its constitutionality. Ford did something similar in appointing Bob Casey to the Federal Maritime commission.

Also: Greg M. - Your Jefferson quote is falsely attributed.
http://wiki.monticello.org/mediawiki/index.php/The_democracy_will_cease_to_exist

[Ben]

you neo-cons and your vitriolic circle jerks ... take an anti-acid and go to bed instead of swallowing and regurgitating each other's hate.

[GW]

is this article a joke? so just to confirm then, there's an obscure rule which prevents clinton from taking the cabinet job because of pay difference. but there's an incredibly simple solution with a clear precedent so that rule doesn't matter and this whole article is irrelevant. wow, that's great you should be a journalist. idiot.

[Cliff S.]

To LeslieT;

"By the way everyone questions Obama birth place but one has ever mentioned McCain being born outside the US in Panama City. Hmmm?"

Take a few minutes to research and you will find that yes, indeed McCain's citizenship was, in fact, questioned. And, it has been well established that he is unquestionably a "natural born citizen" of the Untited States of America!

1) In case you are not aware, the Panama Zone WAS a U.S. territory at the time of his birth.

2) BOTH of his parents were legal U.S. citizens, meeting the requirements of the law at that time on Natural Born Citizenship.

3) The U.S. Senate agreed and passed a resolution stating that John McCain is a Natural Born Citizen. This was, in fact, introduced by two Democratic senators: Patrick Leahy (D-Vt.) and Claire McCaskill (D-Mo.)

http://leahy.senate.gov/press/200804/041008c.html

4) McCain quickly and openly showed his actual birth certificate AND medical records and opened them up for inspection by ANYONE in the press.

Obama, however, still has yet (to my knowledge) to show his actual long form "Vault Copy" birth certificate to ANYONE! And I am NOT talking about this short form "Certification of Live Birth" (COLB) that appeared on his website, was allegedly inspected and photographed by FactCheck.org and reported on by the L.A. Times.

There are problems with this COLB causing all these doubts.

So my question is quite simple. If he is indeed a natural born citizen, then why not simply open his vault copy birth certificate up for inspection, as John McCain did?

This simple act would silence any and all doubts on this subject. However, instead of doing this, He has chosen to hide behind lawsuits dragging this whole matter out.

[John Moler]

All will and done but they are all Lawyers and know how to twist and turn the law the way they need it. We are the ones and our kids who pay the price they just move on to bigger and better things while we try to put are world back together..Hell the bigger the Lie the more people beleive it..if you tell a lie it goes around the world 3 times before the truth can go around once..