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What the Heck are Emoluments?

Hillary haters have latched on to the Emoluments Clause of the United States Constitution to argue that Senator Clinton, who Barack Obama just formally announced would be his Secretary of State, is constitutionally barred from taking the post. Here is a summary of the issue. Here is the pertinent constitutional language:

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 during such time . . . . (U.S. Const. Art. I, § 6.)

Emoluments are pay. The problem is that President Bush recently issued an executive order increasing Condoleezza Rice?s salary, which means that "Emoluments . . . have been encreased during" Clinton's tenure as Senator.

This isn't exactly new. President Nixon encountered the same problem when he wanted to appoint Senator William Saxbe to Attorney General. The solution, later called the ?Saxbe Fix,? reduced the pay level of Saxbe's position to where it was before the hike. Ta-da! No more Emoluments Clause problem.

Could a Saxbe Fix happen here? My understanding is that the constitutionality of the Saxbe Fix remains an open question because the Nixon administration was not forced to defend it in court. Worse, there is a rather persuasive argument against it -- in this case, emoluments have "been encreased" regardless of whether or not they are later decreased. 

While the issue is real, the whole discussion is also rather absurd given the Constitutional desecration that defines its historical context. Never mind that the current administration has attempted to erase the Fourth Amendment and rewrite the separation of powers rules -- chalk those doctrines up to history and call them "quaint."  When it comes to emoluments, however, it's time for lines in the sand.   Bill O'Riley must be preening.

Full post as published by Nuts & Boalts on December 01, 2008 (boomark / email).