Is Hillary’s Appointment Unconstitutional?

A couple of weeks ago, the blogger Adam B. published a front page post on the DailyKos entitled “Enoluments, Clinton, and that Pesky Constitution” about the potential (though reconcilable) problems facing Hillary Clinton’s appointment as Secretary of State, namely Article One Section Six of the Constitution:

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 increased during such time….

Enoluments basically means “salaries or other entitlements,” and Senator Clinton, though she did not vote on it, was a member of the Senate when they approved pay raises for Cabinet positions, including the Secretary of State. By the way, Hillary didn’t vote on the issue, because President Bush enacted pay raises through an executive order. So while she technically possessed “authority” (as one of 535 members of Congress), she wasn’t exactly in a strong position to use that authority to prevent a seemingly routine executive order.

It’s difficult to argue that the intent of the framers of the Constitution would have been to prevent the President from appointing a qualified member of Congress to a position that they (when a pay raise was being considered) had previously no interest in taking. Hillary, of course, was planning on being President, not Secretary of State, and she obviously doesn’t need the money.

I mention all of this because some on the right are now arguing Clinton’s appointment would amount to a violation of the Constitution, conveniently ignoring that both Richard Nixon and Bill Clinton skirted around the issue by simply offering their appointees the previous, “unraised” salary. Nixon created the precedent, now referred to as the Saxbe Fix.

In 1973, President Nixon nominated Sen. William Saxbe (R-OH) to serve as his Attorney General after the Saturday Night Massacre, but the AG’s salary had been increased in 1969 during Saxbe’s term.  Nixon persuaded Congress to lower Saxbe’s salary to the pre-1969 level, and the “Saxbe fix” was born.

Adam B. sums it up:

Bottom line?  Congress needs to act between now and January 20, 2009 her potential swearing-in date if Sen. Clinton is to become Secretary Clinton, but precedent suggests that Congress will make it happen, regardless of whether it’s actually, strictly constitutional.  I happen to think the “Saxbe fix” is consistent with the purpose behind Article I, Section 6, especially in a case such as this in which Sen. Clinton did not vote upon the pay raise applicable to the position, but you can fairly disagree based on the generosity of your interpretation.

If Hillary’s critics are actually honest about the framers’s intent, then they should also conclude that her mere presence during a Bush executive order does not and should not prevent her from serving in the Cabinet and that the framers had only wanted to prevent a type of insider horsetrading, not in preventing a newly-elected President-elect from appointing a member of Congress to his Cabinet.

Actually, in my personal opinion, the provision was intended to prevent a member of Congress who helped to create a position (or increase that position’s salary and/or benefits) from serving in that same position until at least a year after their term in Congress had expired. This was about unnecessary offices and unnecessary salaries; it was not about the Secretary of State. But if the Saxbe fix doesn’t work, which it should, I suppose Obama could do one of two things:

1) Argue or ensure that the Secretary of State is not, technically, a civil service position or a “civil office,” as these terms typically imply a type of employment protection not afforded to this specific position.

2) Argue the pronoun “he.” If we’re going to discuss the framers’s intent, then why not discuss their intention of the pronoun “he”? Sure, it may sound like a stretch, but in an argument about spirit versus letter, it may be worth attention.