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Is Hillary Clinton Unconstitutional?

          On Friday, December 19, 2008, the President signed into law S.J. Res. 46, which provides “[t]he compensation and other emoluments attached to the Secretary of State shall be those in effect January 1, 2007, notwithstanding any increase in such compensation or emoluments after that date under any provision of law, or provision which has the force and effect of law, that is enacted or becomes effective during the period beginning at noon of January 3, 2007 and ending at noon of January 3, 2013.”  

            This law, of course, is the so-called “Saxbe fix,” which in this case is intended to obviate objections to the constitutionality of appointing Senator Hillary Clinton as Secretary of State.  Because the salary of the Secretary of State was raised in January 2008 (by approximately $4,700 to $191,300) and Clinton was elected for a (second) term in the Senate from January 3, 2007 to January 3, 2013, her appointment would violate the Emoluments Clause absent this fix. 

            It should be noted that the January 2008 pay raise resulted from a procedure established by a statute, 5 U.S.C. § 5303, enacted before Senator Clinton was in Congress.  Under this law, the salaries of federal employees, including the Secretary of State, are increased annually according to a cost of living formula unless the President certifies that such an increase would be inappropriate.  The Executive Order issued pursuant to this statute did not make such a certification so the pay raise went into effect. 

            Professor Tribe, among others, argues that the 2008 pay increase does not implicate the spirit of the Emoluments Clause because “the salary increase at issue here was created not by any enactment for which Senator Clinton voted or on which she had any opportunity to vote.”  Since Clinton played no role in the pay increase, the theory goes, there is no reason why it should affect her eligibility for appointment.  As Professor Sandy Levinson puts it, “no serious argument can be made that preventing [ Clinton’s] nomination would relate to the purposes (preventing self-dealing or corruption) of the initial clause.” 

            There are several problems with this argument.  First, the Emoluments Clause is a prophylactic rule that applies regardless of whether the Member voted on, or even voted against, the pay raise for the office in question.  Whether it was to prevent clever forms of self-dealing or corruption or whether it was to incentivize Members to limit pay increases, the Framers wanted the disability to apply regardless of whether the Member had any responsibility for the pay raise in question. 

            Second, it may be an overstatement to say that the 110th Congress bore no responsibility for the pay raise since Congress was responsible for approving the budget and appropriating the funds for the pay increase.  Third, if the use of automatic pay increases were recognized as a means of circumventing the Emoluments Clause, this would give Members an incentive to adopt such pay increases, which would seem to be the opposite of what the Clause was attempting to accomplish. 

            Finally, the text of the Emoluments Clause simply requires that there have been an increase in emoluments during the relevant time and does not specify how the increase must come about.  Thus, even Professor Tribe apparently acknowledges that the Clause applies to Senator Clinton,  If this is so, it is difficult to see how the Saxbe Fix becomes any more effective merely because of the automatic nature of the pay increase. 

            Because, as I previously argued, the Saxbe Fix does not effectively remediate the violation of the Emoluments Clause, Hillary Clinton is in fact unconstitutional.  (see Michael Stokes Paulson, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907 (1994) and this post on the Volokh Conspiracy).  So, in fact, is Senator Ken Salazar, who will be nominated as Secretary of the Interior, and possibly Representative Hilda Solis, who will be nominated as Secretary of Labor (although in the latter case this depends on whether there is another pay increase which occurs while she is serving in the 111th Congress, which began earlier today). 

            As Professor Tribe notes, it may very well be that no plaintiff will ever have standing to contest in court the constitutionality of any of these appointments.  However, Tribe asserts that President-elect Obama would not violate the Emoluments Clause and his constitutional oath merely because “the institutional limits of the Article III Judicial Branch would let him get away with a violation of that oath.”  Tribe contends that this would “hardly satisfy the constitutional conscience of a chief executive as dedicated to the to the Constitution as President-elect Obama, who reveres the Constitution as something more than the sum total of judicially enforceable restraints on government power.” 

            So President-elect Obama really cares about the Constitution, unlike some presidents that Tribe is too diplomatic to mention, and will comply with its restraints even when it is inconvenient to do so.  Of course, in this case it turns out, somewhat conveniently, that President-elect Obama interprets the Constitution to allow him to do what he wants to do, but I am sure that is just a happy coincidence.   

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