Is Barry Sneaky?

A colleague of mine told me about this issue today, and I really piqued my interest.

So here’s the deal: Article I, Section 6, Clause 2 of the Constitution reads:  “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; and no Person holding any office under the United States, shall be a Member of either House during his Continuance in Office.”

In January 2008, the Secretary of State received a cost-of-living pay raise by executive order.   Hillary Clinton was a senator at that time–she was reelected in 2006, and her term does not expire until January of 2013.  The Clause doesn’t require that Congress authorize the increase (although in this case it did) or that the person affected have voted for the increase (not sure whether she did or not)–all that is required is that the “emoluments” are “encreased.”  Under the plain meaning of the Emoluments Clause, then, it seems that Clinton is precluded from being the Secretary of State until 2013.

I had never heard of this issue before, but apparently it isn’t new–past Presidents have run into the same problem when trying to fill their cabinets.  One solution that has been used in the past (called the Saxbe fix after Nixon’s Attorney General) is for Congress to pass a law reducing the Secretary of State’s salary back to the level that it was at just prior to the beginning of Clinton’s term.  This is probably what will happen, though some scholars believe that it would not cure the constitutional issues.

A good discussion of the issue is found here.

But as interesting as the constitutional issue is, it pales in comparison to questions like: Did Obama, a former conlaw professor and very bright guy, really not know about this issue when he offered the job to Clinton?  If he was aware of the issue, why did he do it?  That strikes me as awfully machiavellian.  Isn’t Obama the guy who was supposed to be an agent of change, someone who was going to shake up “business as usual” in Washington?  If this is Obama’s MO before he is even inaugurated, we may find that, as has so often been the case, the Washington apple doesn’t fall far from the tree.  Team of rivals, my eye…


8 responses to “Is Barry Sneaky?

  1. Maybe it’s just “machiavellian” ’cause we didn’t think of it first… 😉

  2. Pingback: Is Barry Sneaky? at Hillary Clinton On Best Political Blogs

  3. Quite a leap of logic, one might say. Your intro is very centrist and reasonable. It brings about a valid argument, and then it deteriorates from there forward.

    By your logic, one might assume that if Mr. Obama shows up to his inauguration in a suit, in DC, and swears on the bible by the same oath taken by the last 43 presidents, then he’s just doing “business as usual” and is a Machiavellian failure.

    I’m quite sure he was aware, by his own cognizance or via one of his team members, the issues that would likely be faced. And as you admit in your own article, it has been used to overcome the same issue. I’m not sure what you see as so derisive if the salary is reverted, since there stands no gain in Hillary’s taking of the position. I guess he’s just an easy target for one of rightest beliefs. He’s on the other side of your fence, so an easy target. A clearly differing position begs to consider that this law that you so attack Obama for possibly utilizing was initially utilized by Taft, and named due to Nixon’s utilization. Might I point out to you that both of these were, you guessed it, GASP, republicans. DOH!

  4. Hmm. You seem to make a few logical leaps yourself, Ben. To my knowledge, we don’t know one another, so I’m not sure why you so glibly assume that I’m a Republican of “rightest beliefs” (whatever those are) who isn’t on Obama’s “side of the fence.” Might surprise you to know who I voted for.

    Anyhow, my point was that _if_ Obama for political reasons had put forward Clinton’s name while knowing of this potential constitutional issue, it would have been a calculating action not in keeping with his campaign platform, which was all about change. He’s been talking for the last two years about how he’s going to be a different kind of President, and I guess I took him at his word, so I hold him to a higher standard than your average politician.

    To add to my post, in light of the fact that Hillary’s appointment has been formally announced, I really am astonished that not a single media outlet seems to have reported on the issue. If anyone is aware of such an article, I’d welcome a comment. I know that Congress will likely pull an ol’ Saxbe fix (constitutional or not), but they can’t simply ignore the issue. Why hasn’t anyone picked it up?

  5. FOX NEWS “picked it up”. They reported the controversy concerning Hillary and the Emoluments clause today,December 3,2008. Her husband is being considered to take her Senate seat in NY. No Saxbe maneuver should be allowed. She is ineligible to be Secretary of State at this time. Obama is ineligible to be POTUS while we are on the subject of ineligibility. Obama has shown himself to be quite a manipulator of events and is quite a conniver!

  6. Of course Barak Obama is sneaky. Every politician is sneaky, but running as a centrist when you are in fact the most liberal member of the Senate takes some real sneakiness.

    But this appointment isn’t much to talk about in the line of sneakiness. The constitutional flap, Volokh posts notwithstanding, is just a way for a bunch of law profs to help themselves get tenure. On the political side, it is latest, and most gutsy move by the most talented politician we’ll see in our lifetime. He’s channeling the advice of a one of the few people who can match him in brilliance and duplicity: Michael Corleone.

    It’s called keeping your friends close, and your enemies closer. Hillary still hates him and wants his job. Now, she is where he can watch her, and where she cannot undermine him without 1) being found out; 2) looking petty; and 3) risking national security. On the flip side, if she plays ball with him, she gets 1) a chance to work on the most pressing issues of the day; 2) a spot high in the record books (if she succeeds); and 3) an good chance of running and winning in 2016 (she’s be younger then than McCain was).

    And the country? Well, I think her pragmatism will be desperately needed.

    Brilliant. Only Obama would have this kind of nerve, and only Obama could pull it off. I don’t agree with any of his policies, because unlike other posters on this blog, I am aware of no examples in human history where socialism led to prosperity of appeasement to peace. But Obama is so good, such a rare talent, that there is an artistic pleasure in watching him work.

  7. I see eye to eye with The Barb.

    Interesting of course, time having elapsed that Bill did not go to the Senate any more that Kennedy but was appointed by the Gov. of New York. I disagree with that premise as does Senator Finegold of Wisconsin, the man who voted against the Patriot Act and has begun a grassroots campain to challenge what happened in New York, after probably having kept a close eye on the proceedings in Illinois unseating the governor who wanted to sell Obama’s former Senate seat to the highest bidder.

    Since the New York governor’s pick for Hillary’s seat is someone who facilitated Clinton’s campaign against Obama and in effect holds open the future seat for a returning Hillary at a fixed rate of pay lowered by Obama, in case she screws up,
    I am actually looking forward to observing more samples of the purported sneakiness of President Obama the Conniver

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