The Rabid Conservative

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Posts Tagged ‘Secretary

In Short – Hillary’s Appointment as SecState may Violate Constitution

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Hey folks –

Here’s something to chew on while you’re enjoying your Thanksgiving turkey.

I quote Article 1 Section 6 of the US Constitution:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office … which shall have … the Emoluments whereof shall have been increased during such time;

Emolument – The product of employment, namely salary and/or fees

According to 5 USC Section 5303, the salary of government employees is automatically increased each year unless the President deems it’s inappropriate to do so. This includes the pay for the Secretary of State. Since salary (emolument) is automatically increased during the term of Senator Clinton, she could not serve until the end of the 112th congress.

Now the Founders wanted a provision to prevent legislators from voting cushy pay increases in the executive branch should a friendly president get voted into office that might select them for that post.

However, we’re also dealing with an automatic pay increase – something that Senator Clinton didn’t specifically vote for. The constitution doesn’t read that way, but rather, says, if salaries go up for a civil while a senator is in office, that senator cannot be appointed to that position.

There were other instances where this came into play. At first, William B. Saxbe was to be appointed by Nixon to be Attorney General. Instead, the fix, called the Saxbe fix, was to decrease the salary to the level that it was before Saxbe became a Senator. Interestingly, this came into play during the Taft Administration. Later, it came into play under Carter and Bush 41.

In order for Clinton to be eligible, the Saxbe Fix would have to be applied and more than likely to pre-2006 levels, even though there’s precedent that fix would go back to pre-2000 levels when Clinton first came into office.

However, the Saxbe fix itself has one key problem: such a reparation is that an increase and offsetting decrease is still unconstitutional, even though the common interpretation that has traditionally carried the majority is that the legislative intent was that net increases are what’s important.

It will be interesting to see how this plays out. Have a great Thanksgiving!


Written by The Rabid Conservative

November 26, 2008 at 5:35 pm

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