Wednesday, November 26, 2008

Emoluments Clause

Since people are starting to ask questions about this long-forgotten and often irrelevant constitutional clause, I thought I would share what I know on the subject. I will disclose up front that I forgot there even was an Emoluments Clause until last week. Much of what I say below is drawn from those far more knowledgeable on the subject who have been talking about it on legal listservs. Article I, Section 6 reads as follows:

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.
First off, what the heck are emoluments? Basically, it means the salary for the position. If you are in Congress and the salary of an executive branch position is increased during your current term, you cannot then take that position. This was put in the Constitution in order to keep members of Congress from creating well-paying positions and then taking them for themselves.

The Emoluments Clause has suddenly become relevant again because Senator Clinton was in the Senate when the salaries of Cabinet secretaries were increased. Under a straight reading of the text, she would therefore be prohibited from serving as Secretary of State for President Obama.

As with most legal questions, there is a catch. This has come up before and Washingtonians have found a workaround that has received at least tacit support over the last thirty-five years or so. Richard Nixon wanted to appoint William Saxbe as Attorney General in 1973. At the time, Saxbe was the sitting Senator from Ohio and Congress had increased the pay for Cabinet secretaries, including the Attorney General, during his term. The so-called Saxbe Fix involved Congress lowering the pay of the Attorney General back to the level it was at prior to the increase in 1969. Saxbe was then confirmed for the appointment. The issue came up again for Carter and Bush Sr., both of whom used the Saxbe fix.

With respect to Clinton, it is expected that a similar agreement would be reached if she is indeed appointed Secretary of State (a whole other issue). It is worth noting that the increase in salary during her term in Congress was made by executive order for cost of living adjustments rather than Congressional legislation. Does this resolve all of the Constitutional issues? Hardly, but it is an approach that is pretty likely to work on a practical level.

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