Is Senator Clinton Eligible for Secretary of State?
Posted December 4th, 2008 at 9:35am in First Principles, Rule of Law 
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There is a growing debate on the web and in the media regarding Senator Hillary Clinton’s eligibility to be appointed to the office of Secretary of State by President-Elect Barack Obama.
The controversy centers on the “Emoluments Clause” of Article I, section 6 of the United States Constitution, which states that “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….” Because the salary (or ”emoluments”) of the office of the Secretary of State has been increased since Senator Clinton was re-elected in 2006, she would be constitutionally ineligible for appointment.
Clinton and Obama seem to be keenly aware of the controversy. A spokesman for Senator Clinton assured the public that “This is a Harvard Law grad nominating a Yale Law grad here, so all parties involved have been cognizant of this issue from the outset.” In other words, the Ivy Leaguers have everything under control, so we needn’t worry about any constitutional violations here.
Yet perhaps a little independent investigation is necessary. So, we should ask, what does the Emoluments Clause actually mean? Can Congress do an “end run” around the clause by reducing the salary of the Secretary of State back to its pre-2006 level, thus rendering Senator Clinton constitutionally eligible (otherwise known as the “Saxbe Fix”)?
As in many cases, the answers to these constitutional questions are found in The Heritage Guide to the Constitution, which is the definitive clause-by-clause analysis of our nation’s governing document. We have reprinted Law Professor David Forte’s brief yet enlightening explanation of the clause here.
Among other things, it is worth reading this piece to see how different presidents have dealt with the issue of constitutional ineligibility under the Emoluments Clause. While some sought to evade the clause by employing the Saxbe Fix, one president in particular believed that such a move was impermissible, because it didn’t change the fact that the salary had been increased prior to its being decreased.
That president was Ronald Reagan, and the would-be Justice of the Supreme Court who wasn’t nominated because of the Emoluments Clause was Orrin Hatch.
Each branch of our government, including the Congress and the President, has an independent duty to uphold our fundamental law. As this debate plays out, perhaps we’ll see who takes this duty seriously, and who does not.
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7 Responses to “Is Senator Clinton Eligible for Secretary of State?”
Dennis Aderholt Social Circle Ga. on December 4th, 2008 at 9:35am said:
Well this just shows that education is not everything. Do not get me wrong, I am all for higher education, but along with this one must have what us “country boy’s” deem as common scence. It seems that Harvard and Yale forgot that common scence is a must, and truely believe that a degree form either school entitles them to anything. This includes public office, ekected or otherwise. It really is no suprise to see “hitlary” seek an end run to gain what she wants.Well that is the way of the Clintons in all things. Just my opinion.
Barb -mn on December 4th, 2008 at 9:35am said:
If she isn’t eligible, Senator Obama is well aware of it. All part of his theatrics to throw the public off and make himself look… gosh, I can’t find a suitable word?
Wayne from Jeremiah Films, San Diego on December 4th, 2008 at 9:35am said:
I’ve linked to this post from http://www.jeremiahfilms.com/BlogWatch/Clinton/1204c
“There is a growing debate on the web” I think it is going to get bigger.
David O’Banion, Baytown, Tx on December 4th, 2008 at 9:35am said:
The big question is not about Hillary. The real question; “Is Obama elgible to be President”?
We are facing a Constitutional crisis unless he can prove he is a “natural born citizen”. The Left wants to ignore the Constituion and if the American people let this happen, we no longer have a nation of laws.
Sam, Hailey, Idaho on December 4th, 2008 at 9:35am said:
This shows the arrogance of those in power. I don’t necessarily think that it is limited to the Democrat Party, however they tend to get a free ride from the press, and as a result, a free ride from “the people.”
Here is a question though. What if any increases in pay were based on inflation? Would that not keep the spirit of the law?
M.N. Nielson, Preston, Idaho on December 4th, 2008 at 9:35am said:
So why doesn’t the Supreme Court, which is to see that the Constitution is not violated, act on this appointment?
Roy Bercaw Cambridge MA USA on December 4th, 2008 at 9:35am said:
This is not an issue of common sense but integrity. Credentials and prestige do not include integrity or support for the Constitution. These politicians regularly violate their oaths of office by thwarting the laws of the US. But as we saw in this election the voters are clueless and careless about laws. The appointment of Eric Holder shows that complying with laws is not a priority of this historically elected president elect.