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January 30, 2009

Lawsuit Filed Alleging Hillary Clinton Is Ineligible To Serve As Secretary Of State

by Doug Mataconis

Judicial Watch, which was a thorn in the side of the Clinton Administration back in the 1990′s, has filed a lawsuit alleging that Hillary Clinton is ineligible to serve as Secretary of State:

WASHINGTON — A conservative watchdog group filed a lawsuit Thursday arguing that Hillary Rodham Clinton cannot legally serve as secretary of state, even though she was sworn in last week.

The suit is based on an obscure section of the Constitution on compensation for public officials, the emoluments clause. The clause says no member of Congress can be appointed to a government post if that job’s pay was increased during the lawmaker’s current term.

Clinton was serving in Congress when the secretary of state’s salary was raised to its current level of $191,300. So that Clinton could take the post, Congress last month lowered the salary to $186,600, the level when she began her second Senate term. A similar tactic has been used so that several other members of Congress from both parties could serve in the Cabinet.

Judicial Watch, which has pursued several suits against Clinton and other officials over the years, argues there can be no exceptions to the clause.

The group says that Hillary Clinton is “constitutionally ineligible” to be secretary of state until 2013, when her second Senate term would expire. She resigned from the Senate to take the Cabinet post.

A copy of the lawsuit can be found here, and it’s fairly straightforward.

Judicial Watch is representing a long-time State Department employee who alleges that it he would be damaged by being required to take orders, and act under the direction of, a Secretary of State who is ineligible to serve. Assuming that this is sufficient to get around the inevitable standing issues, the Constitutional argument is fairly straightforward:

  1. Article I Sec. 6, Clause 2 of the Constitution states that a sitting Senator or Representative cannot be appointed to a civil office for which the compensation was increased during the time that they served in the legislature
  2. On three separate occasions since Hillary Clinton began serving her second term in the Senate, the salary for the Secretary of State was increased by Executive Order.
  3. Therefore, by a strict reading of the emoluments clause, Hillary Clinton cannot be Secretary of State until at least 2013.

On the other side of the argument, there is the fact that, prior to the time that she took office at Foggy Bottom, Congress instituted a so-called Saxbe Fix — lowering the salary of the Secretary of State to where it was at the beginning of Clinton’s then-current Senate term. This is the same “solution” that was used when this issue came up in the past, although the last time it was tried Senator Robert Byrd pointed out that the so-called fix didn’t fix anything. (Of course, Saxbe was a Republican, and when Hillary’s nomination came before the Senate, Byrd voted yes)

As I noted when this controversy first arose, the Constitutional argument against Clinton’s eligibility is rather clear:

If the words of the Constitution mean what they say, then it seems fairly clear that Hillary Clinton is Constitutionally ineligible from serving as Secretary of State. Is it a dumb rule ? Probably, just like it’s a dumb rule that someone like Arnold Schwarzenegger couldn’t serve as President of the United States merely because he was born in a foreign country. The way to deal with dumb rules, though, isn’t to ignore them, but to change them via the method that the Constitution provides.

>However, I don’t see this lawsuit going anywhere for a very simple reason:

[N]o Federal Court Judge is going to say that Barack Obama cannot have the Secretary of State of his choice.

And that goes double for any Judge on the Court of Appeals, or any Supreme Court Justice.

Perhaps I’ll be proven wrong, but I doubt it.

Cross-posted from Below The Beltway

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5 Comments

  1. This case relies on a rather tortured definition of both the words “emolument” and “increased.” First off, emolument means “returns from office,” not “money as measure in U.S. dollars,” so once adjusted for inflation the salary adjustment isn’t necessarily an increase in the actual returns. Second off, they need to define the word “increased” in such a way that if the salary when she became a senator was x$ and it’s x$ now it can still be said to have increased. No judge will or should accept either definition.

    Comment by Miko — January 30, 2009 @ 3:24 pm
  2. Who gives a shit?

    Comment by Joshua Holmes — January 30, 2009 @ 8:22 pm
  3. Of all the Constitutional battles to pick, this one seems quite useless. Personally, I’d rather see groups like Judicial Watch standing up for Montana’s recently-enacted gun law that challenges the gross abuse of the commerce clause by Congress.

    Comment by Quincy — January 30, 2009 @ 11:47 pm
  4. Quincy,

    Judicial Watch has always been, how shall I say it, quirky in the battles it chooses to fight.

    Don’t hold your breath on them getting involved in a real issue like the Montana case.

    Ironically, I went to law school with one of the guys who signed the Complaint in the Hillary case.

    Comment by Doug Mataconis — January 31, 2009 @ 8:02 am
  5. Doug –

    Thanks for the background. I’d not heard of them before this, but from the looks of it I kinda thought that’d be the case.

    Comment by Quincy — January 31, 2009 @ 10:26 pm

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