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Byrd’s Office Explores Constitutionality of Sen. Clinton Serving as Secretary of State

December 4, 2008
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The Senate’s senior member and staunchest constitutional advocate on the Democratic side of the aisle, Robert Byrd of West Virginia, is exploring whether Sen. Hillary Clinton (D-N.Y.) is eligible to become secretary of state in the Obama administration.

The question of eligibility arises from Article 1, Section 6 of the Constitution. It says that no member of Congress can be appointed to a civil office that benefited from a salary increase during the time that House or Senate member served. On Jan. 4, 2008, President Bush signed an executive order raising the salaries of cabinet secretaries from $186,600 to $191,300, a cost of living adjustment.

Constitutional scholars who spoke to agreed this issue is a valid one in the confirmation process of Clinton, who President-elect Barack Obama announced Monday would be his nominee for secretary of state.

However, they disagreed on whether the matter can be resolved by simply reducing the pay for the job back to the pre-2008 level.

While there is legal precedent to allow members of Congress to accept these jobs – which came to be known as the “Saxbe fix” – Byrd has opposed the constitutionality of that remedy in the past.

In 1973, President Richard Nixon nominated Ohio Sen. William Saxbe as attorney general shortly after firing top Justice Department officials at the height of the Watergate scandal, including Attorney General Elliot Richardson. Saxbe was a senator in 1969 when Congress voted to increase pay for cabinet secretaries.

The matter was resolved when Congress voted to lower the attorney general’s salary to pre-1969 levels, and the Senate confirmed Saxbe over the objection of Byrd and others who challenged it on constitutional grounds.

The Constitution was “so clear that it can’t be waived,” Byrd said in a Washington Post story at that time. “In my judgment, the bill itself shouldn’t be passed. We should not delude the American people into thinking a way can be found around the constitutional obstacle.”

The issue is buzzing on the blogosphere, from legal blog The Volokh Conspiracy to the liberal Daily Kos.

Byrd’s spokeswoman Jenny Thalheimer told that the senator is not prepared to comment on the matter, but she said the staff is “doing research” on the matter and asserted that the constitutional clause potentially rendering Clinton ineligible “is not that obscure.”

The clause, referred to as the “Emoluments Clause” – emoluments meaning salary – 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.”

Constitutional scholars agree that the clause’s intent was to prevent corruption – to prevent congressmen from establishing an office or raising the salary of an office and then accepting to occupy that office and reap its enhanced financial benefits.

Still, others argue that the “Saxbe fix” is no fix at all, because the constitutional clause was also intended to limit the size of the federal bureaucracy. Further, some contend, adjusting the salary does not change the clear language in the Constitution.

Whether that matters to the Senate often depends on the political circumstances, said John F. O’Conner, a Washington attorney who wrote a Hofstra Law Review article on the “Emoluments Clause.”

“It usually depends on political considerations,” O’Connor told “There is a long tradition of sartorial courtesy. Lloyd Bentson flew through. But Saxbe met with hostility because it happened after the Saturday Night Massacre.”

Clinton had no role in the 2008 executive order, nor did she play any role in the enabling legislation enacted in 1992 with President George H.W. Bush’s signature that allowed the president to award cost of living adjustments.

Nonetheless, O’Connor said, the constitutional language addresses a raise that occurs while members of Congress are serving their terms in office, whether or not they voted on it.

Thus, since Clinton started her second term in 2007, she would not be eligible for a cabinet-level position until 2013, skeptics of the “Saxbe fix” say.

“While Senate confirmation is not the only avenue to contest the constitutionality of the Clinton nomination, courts have been reluctant to recognize standing in lawsuits based on the “Emoluments Clause,” O’Connor said.

When Alabama Sen. Hugo Black was nominated to the U.S. Supreme Court, after having voted to increase the pension of federal judges, the issue came up. The U.S. Supreme Court declined to hear a challenge to the Black nomination, because it ruled the petitioner had no standing in the 1937 case of Ex parte Levitt. The standing precedent was upheld in the case of McClure v. Carter, later McClure v. Reagan in 1981.

Still, a legal challenge against Clinton’s authority to take administrative action is possible, said Ilya Shapiro, senior fellow in constitutional studies at the libertarian Cato Institute.

“There is a plausible way that a denial of a passport or other administrative actions by the State Department could be subject to legal challenge,” Shapiro told

Though the precedent was named for Saxbe, it was first used in 1909, when President William Howard Taft nominated Pennsylvania Sen. Philander Knox to be secretary of state. The Senate voted to approve the nomination with the caveat of rolling back the secretary’s salary.

The same waiver was used when President Jimmy Carter nominated Maine Sen. Edmund Muskie for secretary of state in 1980. President Ronald Reagan reportedly opted not to use the “Saxbe fix” to nominate Utah Sen. Orrin Hatch to the Supreme Court in 1987 after the failed nomination of Robert Bork. He chose Anthony Kennedy.

Applying the clause to Clinton’s nomination could be construed as a “hyper-technical” reading of the Constitution, said Joseph Postell, assistant director of the Center for American Studies at the conservative Heritage Foundation, but, he added, “that said – the language is clear.”

The Saxbe fix would be adequate in this case, Postell said. But he said it should not go unaddressed.

“It is contrary to the text, but the solution is very easy,” Postell told “It would show the text still matters. If they don’t do anything, they would be saying the text of the Constitution doesn’t matter.”

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