Thursday, December 4, 2008

HRC, Emoluments And The "Saxbe Fix"

I was a dreadfully mediocre law student so perhaps it was just one of the many things that I neglected but I don't recall ever hearing the word "emoluments" However, it would seem that the "emoluments clause" of Article I of the Constitution has suddenly, like the zombie from an old George Romero flick, sprung to ugly life.
Amazingly, Professor Volokh has found one of the happy few - JAG Corps attorney John O'Connor - who did not ignore the Emoluments Clause ....Who in fact wrote a Hofstra Law Review article on it, thereby proving once again that there is no subject so arcane that some law review will not publish on it. For those who may not be able to find the relevant page in their Boy Scout Handbook, the Emoluments (or Ineligibility Clause provides:
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.

In January of 2008 the salary of the Secretary Of State was increased by Executive Order implementing a COLA enacted by the Congress in which Hillary Clinton served. The standard view is that Senator Clinton is barred from serving in the office of Secretary Of State until the Constitutional disability is cured by another election, an intervening election providing the opportunity for the electorate to either ratify or disavow the act of their representative. It appears that the Emoluments Clause has only twice been the subject of legal challenge, both actions being dismissed for want of standing. And, as the topic is almost the epitome of the unsexy Con Law area, the academic commentary has been fairly scant.
It would seem now that the "unsexy" quotient has changed, changed utterly by the proposed appointment of Hillary Rodham Clinton by the President-elect. At Volokh Conspiracy John O'Connor gets to the nut-cut:
I do not believe it affects the analysis that the salary increase occurred as a result of an Executive Order or that the statute creating these quasi-automatic salary increases was enacted prior to Senator Clinton’s current term. By its plain language, the Emoluments Clause applies when the office’s salary “shall have been encreased,” without regard to exactly how it was increased. Indeed, an early proposed draft of the clause included language limiting it to an increase of emoluments “by the legislature of the U[nited] States,” and was later revised to encompass any increase in emoluments. It is worth noting that several Framers thought, without much explication, that the clause was too lax as initially drafted. The clause also does not require that a Senator or Representative have voted for the increase.

The more difficult question is whether Senator Clinton’s ineligibility for appointment may be cured legislatively through the “Saxbe Fix,” where Congress reduces the Secretary of State’s salary to a level at or below where it was when Senator Clinton’s current term began in 2007. The Saxbe Fix got its name because the Nixon administration sought to eliminate Senator William Saxbe’s ineligibility for appointment as Attorney General by reducing the salary of that office to the level that existed before Senator Saxbe’s appointment. Although there was some opposition on constitutional grounds (most interestingly by Senator Robert Byrd and then-Harvard Professor Stephen G. Breyer), the legislation passed and Saxbe was confirmed. Later, Lloyd Bentsen served as Treasury Secretary after “Saxbe Fix” legislation reduced the salary of that office to its level immediately before Senator Bentsen’s Senate term had begun.

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.

Other Scholars drop by and deal themselves a hand. A good time is had by all. I recommend the entire posting thread to all.

UPDATE: I find I can't resist quoting Mickey Kaus in his entirety on the ridiculous, patronizing, typical and stupid response emanating from Team Clinton.
I didn't think her spokesman Phillipe Reines could top his obnoxious and nonsensical response to the Gerth and Van Natta report that Hillary had secretly eavesdropped on her enemies ( “We don’t comment on books that are utter and complete failures”). But he's come close with his spin on the legal argument--a seeming winner*** if you actually believe the Constitution's language--that Hillary is barred from becoming Secretary of State by the Emoluments Clause:

This is a Harvard Law grad nominating a Yale Law grad here, so all parties involved have been cognizant of this issue from the outset,” [E.A.]

Well all right then! No clinging to guns and God in this administration! ... I'm sure they spent a lot of time on the Emoluments Clause at Harvard and Yale.

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