Hillary's nomination will be made in the face of the Constitutional prohibition in the Emoluments Clause (Article I, Section 6, clause 2):
That's quite clear. A Senator, such as Hillary, is prohibited from serving in any federal office "created" or the "emoluments whereof" were increased during the Senator's term.
The salary of the Secretary of State was increased in January 2008 by an executive order, promulgated pursuant to a 1990s cost of living adjustment statute. Because the increase occurred during the time Hillary was a Senator she can not be the Secretary of state.
This issue has been discussed quite a bit in the blogoshpere during the last couple of weeks. One of my favorite Constitutional scholars, Professor Eugene Volokh -- the Gary T. Schwartz Professor of Law at UCLA School of Law, has written about Hillary and the Emoluments Clause. Professor Volokh concludes "it is beyond dispute that Senator Clinton is currently ineligible for appointment as secretary of State." I agree.
The problem has been faced before. Rather than abide the plain language of the Constitution, Presidents Taft in nominating Senator Philander Knox to be Secretary of State, Nixon in nominating Senator William Saxbe to be Attorney General, Carter in nominating Senator Ed Muskie to be Secretary of State, and Clinton in nominating Senator Lloyd Bentsen to be Treasury Secretary, all decided not to let the U.S. Constitution stand in their way.
As President-elect Obama joins the company of Presidents Taft, Nixon, Carter and Clinton, he will probably ask Congress to lower the salary of Secretary of State back to what it was before Hillary took office so that Hillary can take the appointment without a pay increase that while she was in the Senate. Such a charade has come to be known as "the Saxbe fix."
But many legal scholars believe that the Saxbe fix does not cure the Constitutional problem, because the language of the Emoluments Clause is clearly an absolute prohibition: No senator or representative, period.Professor Volokh has also shared the thoughts of Professor Michael Stokes Paulsen, author of Is Lloyd Bentsen Unconstitutional?, 46 Stanford L. Rev. 907 (1994), on the Saxbe fix:
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.
It is sad to see President-elect Obama, a former lecturer on Constitutional Law, show such a lack of respect for the Constitution.
Perhaps Senate Democrats will stand on the same principals as the 10 Democrat Senators who voted against Senator Saxbe's fix. Back then, Senator Robert C. Byrd said, "the Constitution was explicit and 'we should not delude the American people into thinking a way can be found around the constitutional obstacle.'" What will Bryd say about a Hillary fix?