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…