Hillary Clinton Constitutionally Ineligible to Serve as Secretary of State

Friday, December 5, 2008

By Tom Fitton
Judicial Watch President

Judicial Watch has been stirring up quite a bit of trouble this week related to Hillary Clinton's pending appointment to serve as Secretary of State. It all started when we learned that Senator Clinton is constitutionally ineligible to serve in this capacity until at least 2013, when her term expires. Check this out from The New York Times political blog:

Senate Democrats were working Tuesday to put together legislation making it possible for Senator Hillary Rodham Clinton to become secretary of state despite a constitutional clause that some critics argue should bar her from joining the cabinet...



Judicial Watch, a watchdog group that made a name for itself investigating the Clinton administration in the 1990s, raised the matter Tuesday with a statement asserting that Mrs. Clinton was ineligible to become secretary of state because of the so-called "Emoluments Clause" of the Constitution. By the end of the day, Senator Harry M. Reid of Nevada, the Democratic majority leader, was consulting with Republican colleagues in hopes of putting together a bill to address the issue.

Now let me explain what this is all about.

According to the "Emoluments" or "Ineligibility" Clause of the United States Constitution, no member of Congress can be appointed to an office that has benefited from a salary increase during the time that Senator or Representative served in Congress. A January 2008 Executive Order signed by President Bush during Hillary Clinton's current Senate term increased the salary for Secretary of State, thereby rendering Senator Clinton ineligible for the position.

(Specifically, 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." The provision is seen by most as designed by our Founding Fathers to protect against corruption.)

As The New York Times correctly points out, former President Richard Nixon did manage to circumvent this constitutional provision after appointing former Ohio Senator William Saxbe to the position of Attorney General. The Nixon administration forced legislation through Congress to reduce the salary for the position of Attorney General to the level that existed prior to Senator Saxbe's appointment. This scheme, known thereafter as "The Saxbe Fix," was also used to allow Senator Lloyd Bentsen to assume the position of Treasury Secretary under President Clinton.

Still, there has hardly been a consensus on the "Saxbe Fix" at the presidential level. President Ronald Reagan reportedly did not appoint Senator Orrin Hatch to the Supreme Court because of this emolument provision and rejected the "Saxbe Fix" as a legislative remedy. Why?

Because "The Saxbe Fix," does not address the constitutional problem. This type of legislative "remedy" may reduce the salary of Secretary of State to previous levels, but it would not change the fact that the salary had been increased while Senator Clinton served in Congress. Simply put, the Constitution does not provide for a legislative remedy for the "Ineligibility Clause."

Barack Obama was wrong to appoint Hillary Clinton as his Secretary of State for a long list of reasons (some of which I referenced in last week's update). But now that we know there are constitutional barriers to Hillary's appointment, clearly Obama should select someone who is eligible for the position and save the country from a constitutional battle over her confirmation. No public official who has taken the oath to support and defend the Constitution should support this appointment.

As I wrote to you yesterday, now Hillary is attacking us. Her spokesman smeared us by calling us a "fringe group." Why? For pointing out that the U.S. Constitution - the supreme law of the land - should be followed by President-elect Barack Obama and Senator Hillary Clinton.

Harry Reid and Nancy Pelosi are now trying to do an end run around the Constitution by reducing the salary of Secretary of State to previous levels. Reports suggest that not one United States Senator, either Republican or Democrat, will oppose this unconstitutional legerdemain when it comes to the Senate floor next week. Is there not one Senator who will stand for the Constitution? (Reid seems desperate to avoid a vote that would put each Senator on record.)

We will consider all our options and I ask you to support our fight by donating here. Also, let your representatives in Congress know what you think about proposed efforts to do an end run around the Constitution to help Hillary become Secretary of State. You can call Congress at (202) 244-3121.

Until next week...

Tom Fitton
President

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