ADS-L Digest - 3 Dec 2008 to 4 Dec 2008 (#2008-339) (UNCLASSIFIED)

[Baker, John]

        This is more often called the Ineligibility Clause, or sometimes
the Incompatibility Clause or the Sinecure Clause, because there are
other provisions of the Constitution that use the word "emolument,"
particularly Article I, Section 9, Clause 8, which provides that no
person holding any office of profit or trust under the United States,
shall, without the consent of the Congress, accept of any present,
emolument, office, or title, of any kind whatever, from any king,
prince, or foreign state.

        The Ineligibility Clause problem is typically addressed with a
so-called "Saxbe fix," see article on Wikipedia,
http://en.wikipedia.org/wiki/Saxbe_fix, under which the emoluments
(salary) are decreased to the amount applicable before the Senator was
in office.  The Volokh Conspiracy blog,
http://volokh.com/archives/archive_2008_11_23-2008_11_29.shtml#122754891
, quotes a Prof. Michael Stokes Paulsen as criticizing this approach:

<<Then there's the infamous "Saxbe Fix" precedent, which I discuss in
Lloyd. Couldn't Congress pass a repealing statute, or President Bush (or
even President Obama) rescind the executive order, selectively, as to
Hillary and make everybody happy? Nope: The clause forbids the
appointment of someone to an office the emoluments whereof "shall have
been encreased." A "fix" can rescind the salary, but it cannot repeal
historical events. The emoluments of the office had been increased. The
rule specified in the text still controls.

Unless one views the Constitution's rules as rules that may be dispensed
with when inconvenient; or as not really stating rules at all (but
"standards" or "principles" to be viewed at more-convenient levels of
generality); or as not applicable where a lawsuit might not be brought;
or as not applicable to Democratic administrations, then the plain
linguistic meaning of this chunk of constitutional text forbids the
appointment of Hillary Clinton as Secretary of State. I wouldn't bet on
this actually preventing the appointment, however. It didn't stop Lloyd
Bentsen from becoming Secretary of State. But it does make an
interesting first test of how serious Barack Obama will be about taking
the Constitution's actual words seriously. We know he thinks the
Constitution should be viewed as authorizing judicial redistribution of
wealth. But we don't know what he thinks about provisions of the
Constitution that do not need to be invented, but are actually there in
the document.

There is one last chance for Hillary. The Emoluments Clause provides
that its rule applies to any senator or representative, "during the Time
for which he was elected." Perhaps the rule of the Emoluments Clause
does not apply to female U.S. Senators. It's an out-there argument, of
course (Hillary and I both went to Yale Law School). But I think I would
prefer even this (unpersuasive) pronoun pounce to the Saxbe Fix, or to
ignoring the text of the Constitution entirely.>>


        I'm not personally too impressed with Paulsen's reasoning.
There is also a separate issue whether anyone would have standing to
challenge a Clinton appointment, although Paulsen thinks it is at least
possible that someone would (which I suppose means, in our current
environment, that someone will try to do so).


John Baker


-----Original Message-----
From: American Dialect Society [mailto:ADS-L at LISTSERV.UGA.EDU] On Behalf
Of Mullins, Bill AMRDEC
Sent: Monday, December 08, 2008 10:59 AM
To: ADS-L at LISTSERV.UGA.EDU
Subject: Re: ADS-L Digest - 3 Dec 2008 to 4 Dec 2008 (#2008-339)
(UNCLASSIFIED)

Classification:  UNCLASSIFIED
Caveats: NONE

The emoluments clause says (loosely) that a member of the Congress
cannot move to a job whose pay has increased while they were in the
Congress, at least during the period of their term.  The pay of the
Secretary of State increased while Hillary was a senator, therefore she
is constitutionally ineligible for the job.

Emoluments Clause of Article I, section 6 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."

See:
http://volokh.com/archives/archive_2008_11_23-2008_11_29.shtml#122754891
0

And follow ups here:
http://volokh.com/archives/archive_2008_11_23-2008_11_29.shtml#122756270
8

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