Barack, Hillary and the Founders

When Bill was President, Hillary acted as if she were some sort of “deputy president.” As Bill said when Hillary was chosen to be Obama’s Secretary of State, he expected that they would continue to talk about everything, just as they always had.

There’s no job of “deputy president” in the Constitution. But the Constitution apparently says something very specific about Senator Clinton moving her Blackberry docking station from Capitol Hill to Foggy Bottom: she can’t, unless the “fix” is in and the courts let it stand.

Under Article 1, Sec. 6 of the Constitution, Sen. Clinton is barred from becoming Secretary of State until her elected term in the Senate expires in 2013 because the salary for that position was increased by Executive Order during her current term. She has said that she will accept only the lower salary that was in effect when her term began, and Congress has gone along with the gag by voting to cut the salary to that level.

Does her sleight-of-hand with the now-you-see-it-now-you-don’t pay raise for the Secretary of State avoid the problem with the emoluments clause of the Constitution? Even if it does, is the Secretary of State other than a “civil office” within the meaning of the document? If she clears these hurdles, will she be eligible for the job before 2013?

It’s been 35 years since the question was seriously discussed. (What follows comes from the Senate edition of The Congressional Record, pages 38992 – 38994, dated November 30, 1973; and the House edition, pages 39815 & 39816, dated December 6, 1973). And it may not apply just to Hillary, but also to others such as Sen. “Cowboy” Ken Salazar, (D-Colo.) who is also a prospective Obama cabinet member.

Why are these abstruse and long-forgotten pages relevant today? Those of a certain age will recall when the resignation of Vice President Spiro Agnew in 1973 left the office vacant. The United States had muddled through without a Vice President for varying periods in its history on the death of the President in office and the assumption of that job by his VP, and on the resignation of VP John C. Calhoun on December 28, 1832. When President Kennedy was assassinated and Lyndon Johnson became President, Speaker of the House John W. McCormack (D-Mass.), almost 72 years old, became next in line for the Presidency. If necessary, after him would come Sen. Carl T. Hayden (D-Ariz.), age 86, President pro tempore of the Senate. This situation finally prompted action and the XXVth Amendment to the Constitution gave the President the authority to nominate a Vice President when the office became vacant, with the approval of both the House and the Senate required for confirmation.

The pages of The Congressional Record listed above contain the discussion on whether Rep. Gerald R. Ford (R-Mich.) was eligible to be nominated as Vice President by President Nixon and approved or disapproved by Congress. If the Vice Presidency was a “civil office” within the meaning of the Constitution — one that is subject to “the appointment process delineated in Article II” — he could not be confirmed for the position. No member of the Congress can be appointed to a civil office during the term for which he has been elected. After lengthy analysis it was determined that the Vice Presidency is a “constitutional, elective” office. Ford got his promotion and the rest is history.

Where does that leave President-elect Obama’s pending appointment of Sen. Hillary Clinton (D-NY) to be our 69th Secretary of State?

The Constitutional problems with Sen. Clinton’s nomination appear to be threefold.

First there is the hurdle of the “emoluments clause” of the Constitution, which reads in pertinent part:

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 created, or the emoluments whereof shall have been increased during such time.

The emoluments clause is not unknown to Sen. Clinton or the President-elect. She has stated publicly that if confirmed she will not accept the increased pay but will instead labor for the exiguous sum of $3,588.46 a week, and Congress has approved this maneuver by voting to lower the Secretary of State’s pay to that level. Problem solved, right?


I recollect that it was during our second day of law school that we learned “the first rule of statutory construction,” which applies equally to the Constitution and treaties, which are the Supreme law of the land: “A law that is plain on its face shall not be construed.” Was the salary of the Secretary of State increased during Sen. Clinton’s term? It was. Her selfless decision to forgo the raise and Congress’ vote to decrease the salary appear to be irrelevant, an attempt to dodge the plain meaning of the Constitution she and the President-elect are sworn to uphold. The compensation level for the office was increased during her term, regardless of any other actions subsequently taken that affect it.

There is (as far as I can determine) only one quasi-legal precedent on this issue — a bad one — and two other instances where the I’ll-join-the-Cabinet-for-food gambit worked.

The retirement pay of federal employees was increased during the term of Sen. Hugo L. Black (D-Ala). President Franklin Roosevelt subsequently nominated him for a Supreme Court vacancy in 1937 and he was confirmed by the Senate on a vote of 63 – 13. Eschewing common sense and the plain language of the Constitution, Roosevelt’s Attorney General officially opined that as Sen. Black was only 51 years old, and would not be eligible for the higher retirement benefit for 19 years, the increased emolument didn’t really apply to him — in effect, it was too attenuated for the Constitution to be bothered with.

Give me a break. This is a tortured reading of our ultimate law, a blatant and successful attempt by FDR to get one of his reliable cronies on the Court regardless of his Constitutional disqualification. Is my point just too finicky to stand? If you think so, tell it to the Founding Fathers and start a grass-roots effort to have Article I, Sec. 6 amended.

Black’s nomination and confirmation were therefore unconstitutional, as would be Sen. Clinton’s. I leave it to better minds than my own to decide whether every case decided by the Supreme Court during Black’s tenure (1937 – 1971) should be reheard.

Furthermore, in situations identical to HRC’s, President Nixon obtained the confirmation of Sen. William Saxbe as Attorney General, and Hillary’s devoted husband slipped Sen. Lloyd Bentsen under the Constitutional radar when he became Secretary of the Treasury. To this day the practice is immortalized as “The Saxbe Fix.”

The plain language and clear mandate of the Constitution cannot be lawfully evaded by claims that the benefit will not accrue for many years or that those designated for the Cabinet will not accept the increased emolument. Was no one paying attention? Or is this shady practice just a variation on the punch line of an old joke about two Congressmen discussing the constitutionality of a pending bill, at the end of which one says to the other, “What’s the Constitution between friends?”

If our stretched, tattered, and sometimes ignored Constitution means anything, it’s strike one for the former First lady; and her problems do not end there.

Attention must also be paid to the opening words of the Section:

No Senator or Representative shall, during the time for which he was elected, be appointed to any Civil office…[emphasis added]

Senator Clinton is serving her second term in the Senate, one that runs from January 2007 until January 2013. That is “the time for which [s]he was elected,” and it should make no difference whatever that she plans to resign from the Senate on being confirmed. The Framers apparently had in mind a safeguard that would prevent members of Congress from resigning to seek a better-paid position. Is that Sen. Clinton’s motive? Of course not. But an ethical safeguard will sometimes overreach and frustrate the pure of heart in its net.

If the wise men who formulated the basic law of our land had wanted someone in HRC’s situation to be able to “take a lateral” into the Cabinet, they would have worded Article 1, Sec. 6, something like this:

No Senator or Representative shall, while occupying such office, be appointed
to any Civil office under the authority of the United States created, or resign
from said office to be appointed to a Civil office unless the member receives
in the new office compensation no higher than that which was authorized for
the Civil office at the time of his election to the Congress.

Strike two. Hill, sorry I wasn’t in Philadelphia in 1787 so I could watch your six.

Finally, is the position of Secretary of State a “civil office” under the Constitution? If it is not, none of the foregoing need give us pause. But it is.

Much of the discussion of Rep. Ford’s nomination to be Vice President centered on that issue, apparently because the procedure mandated by the XXVth Amendment, which had never before been invoked, is similar to that which governs the appointment and confirmation of Cabinet officers: similar, yes, but different in very important ways. It is clear from the wording that the drafters of the Amendment wanted to preserve as much as possible of the procedure for electing a Vice President without actually having to hold a special election.

When there is a vacancy the President nominates someone to fill it, and a majority of both Houses must vote in the nominee’s favor or the nomination fails. This procedure is as close as one can get to the usual method of electing a VP. He or she is traditionally chosen by the party’s Presidential candidate and then both of them are either elected or rejected by the voters and, usually, the Electoral College. When a vacancy occurs the President still picks his VP, but the required majority vote of both Houses is substituted for the direct will of the voters. The Amendment creates “a hybrid . . . process . . . incorporating the election procedure of the 12th Amendment and . . . combining it with the advice and consent feature of Article II, section 2, clause 2.”

During the debate on the proposed XXVth Amendment Sen. Birch Bayh, (D-Ind.) said that it would give the nation a “guarantee that there will be a Vice President . . .” and a guarantee “to the people that their representatives in Congress, who are most responsive to the wishes of the people . . . will be able to express the voice of those whom they represent.”

Therefore, according to The Congressional Record, “[T]he ‘election’ nature of the selection process is evidence that the elective character of the office was meant to be maintained.”

So, what’s this about the above-mentioned Article II, section 2, clause 2? That provision gives the President the authority to nominate “. . . public ministers and consuls . . . and all other officers of the United States, whose appointments are not herein otherwise provided for . . .” upon the “advice and consent of the Senate” only, by majority vote. This is the procedure that has been employed to choose and confirm Cabinet members for 219 years.

Congress examined the office of the Vice President in excruciating detail in 1973 in order to see if there was a justification for differentiating it from a “Civil office.” Rep. Ford got a clean bill of Constitutional health on the issue, and it is worth noting that the 93rd Congress was in Democratic Party control and the Republican President, pummeled by Watergate, was on the political ropes. I believe that if there had been a colorable reason to stall or defeat Ford’s nomination and add to Richard Nixon’s woes, Congress would have seized on it. There is no doubt that Cabinet members are “Civil officers,” not “elected” ones, otherwise Congress would not have been so thorough in characterizing the Vice Presidency.

Hillary and her colleagues in the Congress know this. They have all conceded the “Civil” nature of the office she seeks by her waiver of the pay increase. Was her grandstanding deliberately staged to distract public attention from the other disqualifying factors that apply to her, or is she just ignorant of them? I submit that it makes no difference.

Strike three: Yerrout!

No one has ever brought a legal challenge against the maneuvers and lame rationalizations that benefited Black, Saxbe, and Bentsen, and which are being used to support Hillary. Perhaps it’s time to get the Supreme Court of the United States into the act, before President Obama has a field day packing the high Court with those who feel our pain but choose not to apply the law.

I am not a partisan on this issue. Obama could have done much worse. Personally, I wish the former First Lady well. She has had her moments. In my view one of her best came during the Democratic debates when she and Sen. Obama were asked what their response would be in the event of another terrorist attack on a scale of 9-11. He spoke first and gave a droning, lawyerly, almost scholarly response, full of qualifications, permutations, and combinations. Then came her turn. She said: “Retaliate!” As Secretary of State I do not believe that she would ever react to an act of international barbarism by recommending that the President boycott the Olympics.

Also, I fear that the President-elect’s second choice might be Bernadine Dohrn, or Louis Farrakhan. I can find no Constitutional disqualification that applies to either of them.