- Posted by Christopher Estep on December 1, 2008
I’m a constructionist regarding the Constitution. I believe that words mean things and that there is no esoteric meaning behind the those words in particular. Having said that, I’m getting weary of the constitutional nitpicking regarding Obama’s impending nomination of Hillary Clinton for Secretary of State:
Hillary's nomination will be made in the face of the Constitutional prohibition in the Emoluments Clause (Article I, Section 6, clause 2):
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.
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 problem with that interpretation is that it’s not accurate:
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.
Hillary Clinton wasn’t in the Senate in the 90’s. It doesn’t matter that Bush issued the order in 2008. Part of the role of the executive branch is to implement the statutes that have been passed by Congress (and usually signed by the President).
Let’s look at the ramifications of such an interpretation. Any outgoing or lame duck president could prevent his successor from appointing any member of Congress to his cabinet by issuing an executive order. It could also prevent any person in congress from being an ambassador, a federal judge or justice. All of this could be done completely out of spite.
Yes, I’m a constructionist. But the critics are overlooking what I feel is the plain and obvious purpose of the clause out of sour grapes. Its purpose is to prevent Congressmen from creating jobs for themselves or lining its own pockets by giving raises for jobs that they will have. The problem is that it was the President that gave this raise based on a statute passed before Clinton was even in congress!
What’s most irritating is sanctimonious attitude of bloggers who refuse to believe that there could actually be a different, but still legitimate, interpretation of the clause:
It is sad to see President-elect Obama, a former lecturer on Constitutional Law, show such a lack of respect for the Constitution.
And I thought I was smug and arrogant!
As an aside, I think that clause in the constitution needs to be repealed by amendment anyway. While I don’t believe that it prevents Clinton from being SecState (as it didn’t prevent Bentsen in 1992 and countless ambassadors), It legitimately does prevent any congressman in office in 2003 from being named Secretary of Homeland Security. That’s unfortunate, because there are indeed some congressmen who would be very good in that position, such as Joe Lieberman or even John McCain.
RedState: Obama to nominate Hillary as Secretary of State Monday despite Constitutional prohibition