Obama likely to name Hillary Clinton to Cabinet. But wait! Can he?

The president-elect, no-drama Barack Obama, is expected to name his new secretary of State, all-drama Hillary Clinton, as early as tomorrow as part of the week’s rollout for his national security team.


“…upon the earth distress of nations, with perplexity…”
—Luke 21:25

“But he, knowing their thoughts, said unto them, Every kingdom divided against itself is brought to desolation; and a house divided against a house falleth.”

But can he?

As pointed out by a number of bloggers in recent hours, including our eloquent friend Susan over at Wake Up America, there’s a clause in the U.S. Constitution (Article One, Section Six) that prohibits senators (or representatives) from taking a civil office if the legislator has voted to increase the pay for that job.

“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.”

A president-elect who’s a former part-time constitutional law professor, even one without his BlackBerry, presumably is aware of this prohibition, obviously designed to prevent double-dipping and raising your own salary, which is only allowed in Wall Street banks.

And Obama surely knows of its historical precedents.

And if Obama makes the appointment of his former bitter rival, she’ll no doubt take office as the point person for U.S. foreign policy.

But the appointment of the loser of the Democratic presidential nomination by the winner of that nomination and of the subsequent general election wouldn’t be properly Clintonian without some extra dramatic flourishes. This is likely only the beginning of such chapters.

Apparently, President Nixon ran into the same problem when he wanted to appoint Ohio’s Republican Sen. William Saxbe as attorney general.

The solution back then, since dubbed the “Saxbe fix,” was for Congress to pass another law (not without some outspoken dissent from Democratic senators, by the way) reducing the AG’s pay so Saxbe wouldn’t benefit financially from the higher salary he’d previously voted on.

Similar fixes occurred when President Jimmy Carter named Edmund Muskie secretary of State and H. Clinton’s own husband Bill named Lloyd Bentsen to head Treasury.

So much for the actual money aspect and strict construction.

We’re not lawyers. But we do speak English. And to our eyes that constitutional clause doesn’t say anything about getting around the provision by reducing or not benefiting from the increase of said “Emoluments.”

It flat-out prohibits taking the civil office if the pay has been increased during the would-be appointee’s elected term. Period. Which it has.

This seems more like a TV scriptwriter’s trick to keep everyone hanging around through the commercials starting tomorrow.

— Andrew Malcolm

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Photo credit: Associated Press

  1. Lance Gilman, 30 November, 2008

    The old saying, “government by the people, for the people” seems to have lost it’s lustre. More than likely, a long time ago.
    Good riddance to the Constitution as it was intended! Obama’s team will be changing everything and anything possible to fit their plan of a secular worldview.

    I hope I’m wrong about the direction I see us heading down.
    Time will tell…

  2. YeshuaAgapao, 01 December, 2008

    Full summary of Obama cabinet – 11/22:
    The Truth About Terror – Barack Obama’s change into Hillary

    Hillary’s dictatorial terms of acceptance – 11/23:
    The Independant (UK) – Hillary plays hardball

    The line-up (from The Independant article; 11/23)


    Secretary of Health and Human Services: Tom Daschle, 60, former Senate Democratic leader
    Senior adviser: David Axelrod, 53, Obama’s campaign strategist
    Senior adviser: Valerie Jarrett, 52, Chicago business-woman
    White House counsel: Greg Craig, 63, former counsel to Bill Clinton
    Chief of staff: Rahm Emanuel, 49, Political director under Bill Clinton
    Political director: Patrick Gaspard, 41, a New York labour official
    White House press secretary: Robert Gibbs, 37, political consultant
    Vice President’s chief of staff: Ron Klain, 31, former chief of staff of vice president Al Gore

    Confirmed by sources pending vetting and formal announcement:

    Secretary of State: Hillary Clinton, 61
    Treasury Secretary: Timothy Geithner, 47
    National Security Adviser: James Jones, 64
    Attorney General: Eric Holder, 57
    Head of Homeland Security: Janet Napolitano, 50
    Commerce Department Secretary: Bill Richardson, 61

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