The selection of Hillary Clinton for secretary of state reveals that President-elect Barack Obama does not limit his lack of appreciation for the Constitution to just the First and Second Amendments. While there has been plenty of analysis focused on whether or not this is a good political decision, the choice may actually reveal more about Obama’s respect or disrespect for the Constitution than about his political judgment.
The Emoluments Clause in Article I, Section 6 of the U.S. Constitution provides: “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.” On January 4, 2008, President Bush issued Executive Order 13454, which increased the “Emoluments” (salary) of the secretary of state position. Hillary Clinton, as an elected senator from New York at the time and with a current term of office that runs through the end of 2010, would seem to fall clearly within the definition of a “senator” under this clause.
Clinton’s appointment to the “civil Office” of secretary of state constitutes an appointment to an office for which “the Emoluments whereof” shall have been increased during the time for which she was elected to serve as Senator. The plain language of the Emoluments Clause would thus appear to legally bar her appointment, assuming the Constitution matters to the next president.
Previous presidents have ignored this provision in the Constitution by engaging in the legal fraud of rolling back the pay scale for certain senators who they wished to place in office despite the constitutional ban on doing so. The clear wording of the provision makes senators and congressmen “ineligible” — something that cannot be cured by simply reducing their pay. The Constitution says that such senators and congressmen cannot be appointed, not that special accommodations must be made for their appointment.
Nevertheless, President Richard Nixon dodged the law and with a complicit Congress selected Ohio Senator William Saxbe as his attorney general. Saxbe was appointed following the “Saturday Night Massacre” that had led to the resignation of Attorney General Elliot Richardson during the scandal-ridden Watergate years.
President Jimmy Carter used the “salary rollback,” or “Saxbe fix,” to put Senator Edmund Muskie in place as secretary of state; and President Bill Clinton utilized it to appoint Secretary of the Treasury Lloyd Bentsen.
President Ronald Reagan chose to stick to the plain language of the Constitution in making his Cabinet and Supreme Court appointments. So did President George W. Bush and George Herbert Walker Bush.
In the past, Democrats in the Senate have opposed the use of the so-called “Saxbe fix.” In the Saxbe case, ten Democrat senators voted against the ploy on constitutional grounds. Sen. Robert C. Byrd (D-W.Va.), the only one of the ten who still remains in the Senate, said at the time that the Constitution was explicit on this issue and that “we should not delude the American people into thinking a way can be found around the Constitutional obstacle.” Will he speak up again, or was his previous opposition to this unconstitutional artifice base on partisanship rather than principle?
More importantly, is President Barack Obama showing himself willing to abandon his sworn oath to “preserve, protect and defend the Constitution of the United States” before he even takes the oath?