Is Hillary’s Nomination Unconstitutional?

Is Hillary’s Nomination Unconstitutional? December 1, 2008

An obscure clause in the Constitution has some saying that it may be unconstitutional for Hillary Clinton to be appointed Secretary of State. Article One, Section Six of the U.S. Constitution says:

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; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Compensation for cabinet officers was increased in just the last year, but it was increased by executive order rather than by legislation. So does this mean that Hillary can’t be nominated Secretary of State? It turns out this is not a new question. It was first encountered in 1909, when President Taft nominated Pennsylvania Senator Philander Knox to be Secretary of State.

But the Senate Judiciary Committee came up with a solution: simply reduce the compensation back down to the level it was at when Knox took office as a Senator so that the compensation had not increased from that time. The Senate passed a bill doing that unanimously, and this was later referred to as the Saxbe Fix after William Saxbe, who was named Attorney General under Richard Nixon after being a sitting Senator (thought it should, obviously, be called the Knox Fix). This fix has been used since then to get Edmund Muskie and Lloyd Bentsen into cabinet positions directly from Congress.

This clause also figured in the nominations of two current Supreme Court justices. But how could that be, since none of the current justices had prior legislative experience? Here’s the story: When Chief Justice Warren Burger retired from the court in 1986, Sen. Orrin Hatch made it be known that he wanted to be nominated to replace him. Reagan did not want to appoint Hatch to the post, but he didn’t want to offend him either as Hatch was a powerful member of the Senate Judiciary Committee.

So a DOJ lawyer came up with the solution of writing an opinion saying that because Hatch had voted for a pay increase for Supreme Court justices, he was constitutionally ineligible for the office. But Jan Crawford Greenburg, in her recent book, notes that this was essentially a ploy to get out of a politically inconvenient situation rather than a serious legal position. It was just a way for them to say, “Gosh Orrin, we’d love to name you Chief Justice, but that darn Constitution just won’t let us.”

Rehnquist ended up taking Burger’s spot as Chief Justice and Antonin Scalia was nominated to take Rehnquist’s Associate Justice seat on the court. The other major name under consideration: Robert Bork, who would lose an infamous confirmation battle to replace Lewis Powell on the court a year later. Which then led to Anthony Kennedy being on the court.

Legal scholars argue over whether the Saxbe Fix is constitutional or not. Eugene Volokh presents both arguments in these two posts. He quotes John O’Connor, who wrote a 1995 article on the emoluments clause, as saying that even if you decrease the compensation back down, that isn’t enough because the compensation did increase while Hillary was in office even it was subsequently lowered again:

It is my view that the Saxbe Fix [] fails to remove an ineligibility for appointment. I believe the Saxbe Fix is ineffectual based on the plain reading of the Emoluments Clause and is also contrary to the intent of that clause. The Emoluments Clause provides an ineligibility for appointment to an office the emoluments of which “have been encreased.” Even if the emoluments of the office are later reduced, it seems to me that they “have been encreased” during Senator Clinton’s current Senate term even if they are later decreased.

But Volokh takes the contrary position himself, saying that it is reasonable to interpret the text as meaning that as long as the compensation is lowered back so it is the same at the time she takes the new office as it was when she took office as a Senator, the compensation has not increased during her time in office:

Here’s my very tentative thinking: I think the phrase “the Emoluments whereof shall have been encreased during such time” is ambiguous. It could mean “shall have been increased at least once,” or it could mean “shall have been increased on net.” If you’re thinking about buying a computer, for instance, and you ask “Has the price of this computer been increased during the last year?,” it seems to me quite possible that you would mean “Has it been increased so that it now costs more than it cost a year ago?,” rather than “Has it been increased at all, even if the price hike was entirely rolled back a month later?” In fact, the “on net” reading strikes me as more plausible than the rival reading.

I tend to agree with Volokh. I think his reading is more consistent with the intent of the clause, which was to prevent an elected official from creating an office for themselves or increasing the compensation for that office with the intent of then enriching themselves by taking that office. If the compensation is adjusted to be at the level it was when she became a Senator, there is no risk of that problem (add to this the fact that she didn’t even vote for the increase, which I think is another factor in favoring Volokh’s interpretation). Jack Balkin disagrees.

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