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

[Wilson Gray]

Damn! A brother just can't catch a break! :-)

-Wilson

All say, "How hard it is that we have to die"---a strange complaint to
come from the mouths of people who have had to live.
-----
-Mark Twain



On Mon, Dec 8, 2008 at 12:00 PM, Baker, John <JMB at stradley.com> wrote:
> ---------------------- Information from the mail header -----------------------
> Sender:       American Dialect Society <ADS-L at LISTSERV.UGA.EDU>
> Poster:       "Baker, John" <JMB at STRADLEY.COM>
> Subject:      Re: ADS-L Digest - 3 Dec 2008 to 4 Dec 2008 (#2008-339)
>              (UNCLASSIFIED)
> -------------------------------------------------------------------------------
>
>        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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