Academic

Is Hillary Clinton Constitutionally Eligible to Serve as Secretary of State?

By Calvin Massey

   David Cohen (Drexel Law) brought to my attention the fact that the salary of the Secretary of State was increased from about $186,000 per year to slightly in excess of $191,000 per year in January of 2007, the month Senator Clinton began her current term as Senator from New York.  Article I, Section 6, clause 2  of the U.S. Constitution states: "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 encreased [sic] during such time . . . ."  I have not been able to determine whether the increase in the Secretary's salary became effective on January 1, 2007 (which would be a few days before Senator Clinton's term began) or later in that month.  If the increase became effective after her current Senate term began, she would appear to be ineligible. Sources from the constitutional founding suggest that the purpose of this bar was to prevent corrupt office seeking.  (The Founders' Constitution is a convenient collection of sources.)  Justice Story, in his Commentaries on the Constitution (1833) notes that the provision "does not appear to have met with any opposition in the [Philadelphia] convention" but is "an admirable provision against venality."  Assuming that the Secretary's salary was increased after Senator Clinton's current term began, she would would seem to be within the letter but not the spirit of the constitutional barrier.  But who would have standing to challenge the validity of such an appointment?  Of course, the Senate could refuse to confirm her appointment, but that seems to be extremely unlikely.  The problems posed by former President Bill's fund raising, while not constitutional, are a larger practical obstacle to Mrs. Clinton becoming Secretary of State.    

UPDATE:  The Washington Post has this story on the subject, noting the "Saxbe fix," in which the Attorney General's salary was rolled back to pre-term levels in order to permit Senator Saxbe to join Nixon's cabinet as AG.   Stubborn Facts has a similar post on the subject.  Rather than ignoring the problem, perhaps the Saxbe fix or, as the Post calls it, the Hillary amendment, is in order. 

H/T to Dan Filler 

Full post as published by The Faculty Lounge on November 20, 2008 (boomark / email).