Clinton Appointment Unconstitutional Posted by: MichaelW
on Monday, December 01, 2008
Amidst the hullabaloo surrounding Barack Obama's tapping of Senator Hillary Clinton for the post of Secretary of State a particularly important bit of information has been lost. Namely, the Constitution.
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
Art. I, Sec. 6 forbids the appointment of any congressman to a job such as Secretary of State where an increase in the "Emoluments" (meaning "salary" or "benefits of employment") for that job was approved during the congressman's immediately preceding term. Obviously, the point of the prohibition was to prevent federal legislators from creating sinecures for themselves at the expense of the public largess. As it so happens, the salary for the Secretary of State was increased during Clinton's term, but by Executive Order, making her appointment unconstitutional.
According to Prof. Michael Stokes Paulsen (via Eugene Volokh), how the salary was increased does not make Clinton's appointment any more legal:
Are there any legitimate escape hatches to this constitutional bar? Let's consider them quickly. First, does the fact that the emoluments of the office were increased by executive order, pursuant to a general authorizing statute, take the case out of the Emoluments Clause rule? Plainly not. The clause is written in the delightfully ambiguous passive voice that we always discourage in our law students. "shall have been encreased ... by whom, exactly?!" The clause does not limit the application of its rule to direct statutory enactments.
In the world in which legislation may be accomplished by delegation of general quasi-lawmaking authority to executive branch officials, there is no difference in legal principle between a direct legislative enactment and an executive order pursuant to specific legislative authorization. If pay increases may be accomplished, legally, by executive order, then those increases in emoluments fit within Article I, section 6's rule. If those increases occurred during the time for which Hillary Clinton was elected to the U.S. Senate, they disqualify her, regardless of when the general statutory authorization for such increases was enacted.
But wait! Wasn't the (probable) purpose of the Emoluments Clause to prevent congressional self-dealing in the form of creation of offices (or increasing their emoluments) and hoping to profit thereby by being appointed to such office? And isn't that purpose plainly inapplicable here? Perhaps. But the content of the rule here is broader than its purpose. And the rule is the rule; the purpose is not the rule.
Interestingly, Prof. Paulsen's analysis (and that of John O'Connor who is quoted below) leads to same result regardless of whether the salary increase comes via specific action by Congress or the President, or if by automatic operation of federal statute:
As I understand it, 5 U.S.C. § 5303 provides for an automatic annual increase in certain federal salaries, including the salary of the Secretary of State, unless the President certifies that an increase in salaries is inappropriate. The salary of the Secretary of State has increased during Senator Clinton’s current Senate term, which does not end until 2012. Therefore, under 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 encreased” 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.
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.
Prof. Volokh disagrees somewhat in that he thinks the so-called "Saxbe fix" may effectively render such appointments constitutional based on his reading of "increased":
Here's my very tentative thinking: I think the phrase "the Emoluments whereof shall have been encreased during such time" is ambiguous. It could mean "shall have been increased at least once," or it could mean "shall have been increased on net." If you're thinking about buying a computer, for instance, and you ask "Has the price of this computer been increased during the last year?," it seems to me quite possible that you would mean "Has it been increased so that it now costs more than it cost a year ago?," rather than "Has it been increased at all, even if the price hike was entirely rolled back a month later?" In fact, the "on net" reading strikes me as more plausible than the rival reading.
My reading mirrors that of both Paulsen and O'Connor, specifically since the plain meaning of the phrase "have been increased" indicates an action was taken to increase the "Emoluments" rather than referring to any sort of net gain. However, I basically agree with Prof. Volokh that the spirit of the law is not being broken, even though I think its pretty undeniable that the letter most certainly is. I'm also of the opinion that a Constitutional amendment that codifies the "Saxbe fix" is both desirable and necessary. Nevertheless, until such an amendment is ratified, appointments like that of Clinton to Secretary of State are plainly unconstitutional.
The question now is, what happens next? If and when Clinton is confirmed by Congress, in direct violation of the Constitution, what remedy is available if any?
There is a real question as to whom might have standing to challenge the appointment since, until Secretary takes some official action that directly affects the life of some American citizen, it's nigh on impossible to identify what harm is being redressed. You might think that every citizen is harmed when the Constitution is ignored (a position to which I'm sympathetic), but such a position would grant every one of us standing whenever any one of us had our rights violated, which would be an entirely unruly and unworkable state of affairs. By the same token, however, it seems like each one of us is harmed when Congress breaks what is essentially a contract between it and the governed, and that there should be a legal means of redress. My guess is that rather than any direct challenge to Clinton's appointment, we may instead see challenges to her authority and/or to the results of her carrying our the duties of the office:
Created in 1789 by the Congress as the successor to the Department of Foreign Affairs, the Department of State is the senior executive Department of the U.S. Government. The Secretary of State’s duties relating to foreign affairs have not changed significantly since then, but they have become far more complex as international commitments multiplied. These duties—the activities and responsibilities of the State Department—include the following:
* Serves as the President’s principal adviser on U.S. foreign policy; * Conducts negotiations relating to U.S. foreign affairs; * Grants and issues passports to American citizens and exequaturs to foreign consuls in the United States; * Advises the President on the appointment of U.S. ambassadors, ministers, consuls, and other diplomatic representatives; * Advises the President regarding the acceptance, recall, and dismissal of the representatives of foreign governments; * Personally participates in or directs U.S. representatives to international conferences, organizations, and agencies; * Negotiates, interprets, and terminates treaties and agreements; * Ensures the protection of the U.S. Government to American citizens, property, and interests in foreign countries; * Supervises the administration of U.S. immigration laws abroad; * Provides information to American citizens regarding the political, economic, social, cultural, and humanitarian conditions in foreign countries; * Informs the Congress and American citizens on the conduct of U.S. foreign relations; * Promotes beneficial economic intercourse between the United States and other countries; * Administers the Department of State; * Supervises the Foreign Service of the United States.
In addition, the Secretary of State retains domestic responsibilities that Congress entrusted to the State Department in 1789. These include the custody of the Great Seal of the United States, the preparation of certain presidential proclamations, the publication of treaties and international acts as well as the official record of the foreign relations of the United States, and the custody of certain original treaties and international agreements. The Secretary also serves as the channel of communication between the Federal Government and the States on the extradition of fugitives to or from foreign countries.
In these times of the War on Terror, illegal immigration concerns, international treaties regarding climate change, and general globalization, the Secretary of State will have her hand in just about every important issue affecting American lives. Sooner or later someone will find that the Secretary's official actions have affected them personally, claim that she acted without proper authority, and attempt to have the offending action declared null and void. I don't know what official actions would give rise to such a claim, but if one were to be made, I think this would be the only viable avenue to (indirectly) challenge the appointment.
Meanwhile, Congress will have acted in blatant disregard of the Constitution (yet again), and nothing will be done about it. Not exactly a shocker, but dismaying nonetheless.
There is, of course, a more fundamental appeal, at least so long as it’s still possible to obtain weapons. But as the Declaration of Independence noted, people are disposed to tolerate evils while evils remain tolerable. In the grand scheme of things, this is a minor evil, while such travesties as McCain-Feingold and the regulation of every aspect of life are far more meaningful problems. Given that we have quietly accepted increasing tyranny for about a century, I see no reason to think we’ll collectively decide enough is enough any time soon.
Jeff, I’m glad we don’t lie in some Banana Republic where we chase out the leaders or stage a coup every few years or so. Better that we put up with some level of unconstitutional and otherwise bad behaviour.
Rioting, demonstrations, and other such nonsense can stay with the left. Coups and revolutions can stay in Latin America.
I’ll support rebellion when we have sufficient cause.
Art. I, Sec. 6 forbids the appointment of any congressman to a job such as Secretary of State where an increase in the "Emoluments" (meaning "salary" or "benefits of employment") for that job was approved during the congressman’s immediately preceding term.
Since it was done in Clinton’s Term, that would be prior to 2000, and she assumed office in 2001, meaning she couldn’t become a Secretary during that time.
However, she was re-elected in 2006, making this her second term. Doesn’t that clear her?