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.)
Past presidents have confronted this problem repeatedly -- Taft in nominating Sen. Philander Knox to be secretary of state, Nixon in nominating Sen. William Saxbe to be attorney general, Carter in nominating Sen. Ed Muskie to be secretary of state, and Clinton in nominating Sen. Lloyd Bentsen to be treasury secretary, to name some notable examples.
As the article states, this has come up before and there's a traditional "work-around":
quote:The usual workaround is for Congress to lower the salary of the job back to what it was so that the nominee can take it without receiving the benefit of the pay increase that was approved while the nominee was in Congress. This maneuver, which has come to be known as "the Saxbe fix," addresses the clear intent of the Constitution, to prevent self-dealing.
According to some scholars, "the Saxbe fix" doesn't really solve the problem, though:
quote:But many legal scholars believe it does not cure the Constitutional problem, because the language of Article I is so clearly an absolute prohibition: No senator or representative, period.
"The content of the rule here is broader than its purpose,” said Professor Michael Stokes Paulsen, a Constitutional law expert at St. Thomas School of Law in Minneapolis. “And the rule is the rule; the purpose is not the rule.”
Stay tuned. This could get interesting.
Posts: 4344 | Registered: Mar 2003
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posted
They can just state that they are going to ignore it using a signing statement or something. Ha ha ha! Constitutional adherence is such a disposable formality these days anyway.
Posts: 15421 | Registered: Aug 2005
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posted
Well, I don't think this fits in with the spirit of the constitution at all. Hilary clearly isn't accepting this position because there's a pay raise involved, it can't be more than than one hundred thousand dollars, which hilary can make in a few months with cattle futures anyway. The point being, the law is meant to prevent senators and congressmen from appointing themselves to positions wherein they are paid more, this wasn't Hilary's goal or her decision, and if they simply lower the salary it wont even reflect reality. I don't see the problem pragmatically or philosophically.
Posts: 959 | Registered: Oct 2005
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posted
It boils down to what "encreased during such time" means. If it means look at the salary when they took office, and look at the salary when they are possibly to be appointed, and see if there's been an increase, then decreasing the salary in preparation for the appointment works. If it means, check during the term of office and see if there was ever an increase, then there's no avoiding it. Either could fit with the language as written, IMO.
Since the former seems more appropriate to the intent, and has precedent in practice, I suspect this won't be an issue.
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posted
Thanks dante and fugu. I thought I understood something similar and couldn't see how the problem still exists after the salary is lowered to the previous level.
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quote:It is so nice to see people paying attention to the constitution.
Yes. I've enjoyed watching people pay attention to the Constitution throughout the last 8 years, too.
Posts: 26071 | Registered: Oct 2003
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posted
Are you being sarcastic, or just darkly humorous?
Edit: and I agree with Lyr's reading of the statement. The MSNBC interpretation is very rigid, whereas the language is not. "shall have been increased during that time," it seems to me, allows for the increase to be nullified before the person takes office. After all, it would be only a partial truth to claim that during Senator Clinton's time in Congress, the SecState's salary was increased, if it was, by the time she took office, returned to the former level.
Of course, the phrasing of the article itself, which employs the future perfect in the conditional mood (I think), which is common in the constitution, leaves the exact interpretation of the intent unknowable. As far as I know, there is no way in English to differentiate between a net increase over any type of temporary increase in the future perfect conditional without using a great deal more words than the article itself contains. This is the interesting thing about our language that I have been learning as a teacher- the meaning of the word "increased," in this particular case means either net increase or any incident of an increase, but it does not definitively one or the other.
Now, if I were a framer of the constitution, I would take out the auxiliary verb "been," and simply say: "shall have increased," but even that language leaves the meaning somewhere between net increase and incidental increase. When it comes to matters of this kind, I honestly think some of our laws would benefit from mathematical expressions, rather than language.
posted
This is going to be very unpopular, but The Constitution is not always entirely right. It is, after all, quite an old document.
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quote:Originally posted by Teshi: This is going to be very unpopular, but The Constitution is not always entirely right. It is, after all, quite an old document.
Which is why they built in a way to amend it. And it IS always right insofar as it is the foundation of our government and laws. Throwing aside parts of it without going through the proper amending process is a dangerous precedent.
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quote: and I agree with Lyr's reading of the statement
I'm glad to see that even though I've been mostly away from Hatrack for the last few days, I don't have to actually post in a thread for my opinion to be made known.
But Orincoro pretty much said what I would have said.
The rule was a good idea when it was set up. It's there to ensure that people don't increase the salary of a job they'd hold in the future. It's a good rule, but it hardly applies here. Clinton would take or refuse the job regardless of the salary. You could make the salary $1 and she'd act the same way. When your family is worth tens of millions of dollars, SecState is chump change. Bill could make what she'd make in a year with one speaking engagement.
Most of the time I worry about slippery slope arguments, in that if we start to ignore little bits of the Constitution, we've opened the door to more serious breaches. But this I think is an easy exception. It's an ambiguous technicality that I think can be gotten around both legally and ethically.
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posted
I don't think it's being gotten around. I think fugu's analysis is spot on - there are two equally valid interpretations from a linguistic perspective. One is closer to the clear intent of the provision.
If the language was clearly worded to impose the more restrictive reading, I would oppose her appointment even though the situation the provision is aimed at isn't really happening. But that's not the case here.
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quote: and I agree with Lyr's reading of the statement
I'm glad to see that even though I've been mostly away from Hatrack for the last few days, I don't have to actually post in a thread for my opinion to be made known.
But Orincoro pretty much said what I would have said.
:guffaw:
Uh... I read something near the top of the page that sounded smart, so I made assumptions. It was fugu I was agreeing with, btw.
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posted
I think fugu nailed it pretty succinctly and correctly.
What's maybe more shocking is that fugu, Dagonee and I all seem to agree on something. I can't remember that happening before. Must be some sort of Thanksgiving miracle! Posts: 21898 | Registered: Nov 2004
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posted
I suspect that no matter how many constitutional scholars agree on this one, the wight wing wacko Clinton haters will repeat the "It's unconstitutional" line so many times that half the country believe it.
Posts: 12591 | Registered: Jan 2000
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posted
I doubt half the country, but a lot will. Heck, we had significant numbers of people thinking Bush would reinstate the draft in 2005. People will believe anything.
Posts: 26071 | Registered: Oct 2003
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posted
It appears this constitutional provision has been tacitly set aside or "worked around" acceptably to all before, according to the examples given. Still, if we are going to allow these exceptions, then the constitution should be amended in the proper way, not run roughshod over.
One other work around no one has mentioned: If you consider the devaluation of money because of inflation, maybe the salary has not actually gone up!
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Blayne Bradley
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posted
yeah but admendments take time and effort and are hard to pass through, it raises alot less hairs to simply accept that this is a wierd provision and work around it.
I highly doubt that her salary would have not gone up even by inflation standards.
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Ron, if you've paid attention, you'll notice that one (normal, unexceptionable) way of reading the Constitution does not create a problem, thus no amendment is needed. Violating the Constitution is being 'worked around' by, instead, not violating the Constitution.
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posted
Where does it say in the Constitution that Global Corporations can give billions in cash to politicians? Oh yeah. Free speech. What a great document.
Posts: 377 | Registered: Jul 2003
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quote:Originally posted by dantesparadigm: Well, I don't think this fits in with the spirit of the constitution at all. Hilary clearly isn't accepting this position because there's a pay raise involved,
Nobody can know the reasons why Hillary is accepting that position, so that's a non- argument you're making here. As a rule of thumb, when anyone uses the word "Clearly", they tend to mean "I don't have an argument here and I know it, but pretend I do".
Unless you're being sarcastic, in which case I apologize.
The pay must be reduced back to pre-Hillary levels, or this will indeed be the first constitutional violation that Obama will have committed.
Posts: 676 | Registered: Feb 2003
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posted
Don't forget, being Secretary of State would put Hilary fourth in the line of presidential succession, after the Vice President, the Speaker of the House, and the President Pro Tempore of the Senate. That probably means more than the salary. That and the prestige, of course, and the power to have a large say in steering U.S. foreign policy.
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Blayne Bradley
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Yes but being a democrat theres not exactly much wiggle room in how fart that can go, the national convention gave the consensus, it is unlikely that any democrat appointed to executive office would have opinions that run 180 contrary to the consensus, disagreement in how to carry it out maybe but I trust that wont be a problem long run.
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Conflict between the president and the secretary of state are rather notorious in history. In recent history, conflicts have sometimes been very sharp between the views of the secretary of state, and the secretary of defense.
The democratic party has never been known for its unanimity of opinion.
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Blayne Bradley
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neither are republicans maverick or no.
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quote:Originally posted by Ron Lambert: Don't forget, being Secretary of State would put Hilary fourth in the line of presidential succession, after the Vice President, the Speaker of the House, and the President Pro Tempore of the Senate. That probably means more than the salary.
I assume you mean this jokingly. The presidential line of succession hasn't come close to Secretary of State, ever. In fact it's never made it beyond VP.
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Lyrhawn, merely because something has never happened before, that is no argument against it ever happening in the future, as long as it is possible. Suppose there is a terrorist plot that succeeds in simultaneous attacks against the White House and against the Capitol Building when Congress is in session? Or suppose some unscrupulous person conspired to knock off all the people above them in the line of succession?
In theory, the President, Vice President, and Speaker of the House are never supposed to be in the same city at the same time. But I am not sure this is always strictly followed. Suppose (to borrow from the plot of one of Tom Clancy's novels) an airliner loaded with explosives were to be kamakazied into the Capital Building during a State of the Union Address? Or suppose terrorists actually managed to get their hands on a suitcase nuke and smuggled it in during the same circumstances?
It can never be considered unimportant that a person is in the presidential line of succession--especially when it is as high as fourth. To most people, it would be something to be proud of.
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quote:t can never be considered unimportant that a person is in the presidential line of succession--especially when it is as high as fourth. To most people, it would be something to be proud of.
I suspect most people wouldn't consider it at all.
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If someone DID run an airliner into the Capitol during the SotU address, which strains believability in real life, I doubt Clinton would be the one left out. Obama gets to choose one member of the cabinet to be away, and it's going to be someone like the Secretary of HUD or Agriculture, not someone as literally and visually important as SecState. She'll be there for the camera shots if nothing else, which means she dies right along with everyone else. And any plot by her to actually kill all the people above her in rapid succession would be ridiculously difficult. She'd have to kill them all almost simultaneously. And I suspect her ability to govern after such an event would be near impossible, possibly leading to her ouster.
Besides, like Rabbit said, I doubt most people would really look at SecState as any sort of cushion in the hopes of ascending to the throne through death.
I know just because something hasn't happened (since the foundation of our country hundreds of years ago), that doesn't mean it never will, but that doesn't mean a meaningful look at the likelihood of such an event happening and a subsequent dismissal of its importance is unreasonable. Lots of stuff is POSSIBLE, and lots of that stuff is so highly UNLIKELY as to render it beyond the first couple tiers of attention paid to it.
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Ron...it is actually followed very closely, and taken quite seriously. I had friends working with the Secret Service when I was in the service, and that was one thing they mentioned to me, one of the few things they were allowed to talk about. Posts: 15082 | Registered: Jul 2001
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Thanks Kwea, that is good to know. I guess the Vice President and Speaker of the House decide between them which one will be absent during a State of the Union address.
You know, the whole reason why we have a lengthy line of presidential succession is because of the possibility of a large part of our government being taken out by a nuke or some such thing. I believe the line of succession was extended as far as it is today, during the height of the Cold War, when a Russian nuke hitting Washington seemed like a distinct possibility.
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If the problem has been solved in the past by requiring the congressman to take the salary that the Cabinet post had when he or she entered Congress, I doubt anything different will happen this time.
quote:Originally posted by Ron Lambert:
Lyrhawn, merely because something has never happened before, that is no argument against it ever happening in the future, as long as it is possible. Suppose there is a terrorist plot that succeeds in simultaneous attacks against the White House and against the Capitol Building when Congress is in session? Or suppose some unscrupulous person conspired to knock off all the people above them in the line of succession?
I heard the following joke of the Johnny Carson "here's the answer, now here's the question" type:
A: The President, the Vice President, the Speaker of the House, and the President pro tempore of the Senate are all in a plane when it crashes. Q: What is Hillary Clinton's idea of a good day?
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