Legal News

Hillary and the Emoluments Clause, Part II

By Ashby Jones

Associated Press

In this Jan. 13, 2009, file photo, Chelsea Clinton, daughter of Secretary of State Hillary Clinton, looks on during a confirmation hearing before the Senate Foreign Relations Committee on Capitol Hill in Washington. (AP Photo/Gerald Herbert, File)

A right-leaning Washington, D.C. group has sued Hillary Clinton on behalf of a State Department employee, arguing that she is constitutionally barred from serving as Secretary of State.

The group rests its argument on the “Emoluments Clause” of Article I, Section 6, which states:

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 encreased during such time . . . .

We discussed this topic in December, shortly after Barack Obama announced Clinton was his pick for the position.

Generally speaking, the emoluments argument goes like this: when the compensation for a certain cabinet position increases, all members of the Congress in office during the time of the increase shall be disqualified from later holding that position.

According to several academics, the Emoluments Clause is in play because the Secretary of State got a cost-of-living adjustment in January of this year, at which time Hillary Clinton was a senator from New York. As John O’Connor, the author of an 1995 Hofstra Law Review article on the Emoluments Clause, put it in December: “[U]nder a straightforward application of the Emoluments Clause, Senator Clinton is ineligible for appointment as Secretary of State because the emoluments of that office “have been increased” during Senator Clinton’s current Senate term, and this disability continues until the end of “the time for which [she] was elected, or until January 2013.”

The lawsuit, filed last week, largely reprises this argument.

In order to get around any potential emoluments problem, Congress late last year passed a law that basically reduced the Secretary of State’s pay to the level it was prior to the fix. The move is deemed a “Saxbe Fix,” after Senator William Saxbe, who faced the same issue after President Nixon appointed him to Attorney General in 1973.

The lawsuit filed last week argues that the Saxbe Fix fails to correct the constitutional dilemma. “The Joint Resolution cannot and does not change the historical fact that the “compensation and other emoluments” of the office of the U.S. Secretary of State increased during Defendant Clinton’s tenure in the Senate . . . ”

The biggest hurdle facing the suit likely involves standing, or whether the plaintiff, David Rodearmel, a Foreign Service Officer, can show harm enough to justify his filing suit. To that end, the suit alleges:

Requiring Plaintiff to serve . . . Defendant Clinton harms Plaintiff because it is in direct and unequivocal conflict with the oath Plaintiff took to defend . . . the U.S. Constitution . . . . Because Defendant Clinton is constitutionally ineligible to serve as U.S. Secretary of State, Plaintiff cannot serve under Defendant Clinton without violating his oath. Should Plaintiff refuse to serve under . . . Defendant Clinton, Plaintiff would be at substantial risk of disciplinary action . . . .

Update: Rob McInturff, a spokesman for the State Department, told the Law Blog late Monday: “The U.S. Congress enacted Public Law 110-455 to ensure that compensation and other emoluments attached to the office of the Secretary of State conform to constitutional requirements.”

Full post as published by Law Blog - WSJ.com on February 02, 2009 (boomark / email).