Is Senator Clinton Eligible for Secretary of State?

Joe Postell /

There is a growing debate on the web and in the media regarding Senator Hillary Clinton’s eligibility to be appointed to the office of Secretary of State by President-Elect Barack Obama.

The controversy centers on the “Emoluments Clause” of Article I, section 6 of the United States Constitution, which states that “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 encreased during such time….”  Because the salary (or “emoluments”) of the office of the Secretary of State has been increased since Senator Clinton was re-elected in 2006, she would be constitutionally ineligible for appointment.

Clinton and Obama seem to be keenly aware of the controversy.  A spokesman for Senator Clinton assured the public that “This is a Harvard Law grad nominating a Yale Law grad here, so all parties involved have been cognizant of this issue from the outset.”  In other words, the Ivy Leaguers have everything under control, so we needn’t worry about any constitutional violations here.

Yet perhaps a little independent investigation is necessary.  So, we should ask, what does the Emoluments Clause actually mean?  Can Congress do an “end run” around the clause by reducing the salary of the Secretary of State back to its pre-2006 level, thus rendering Senator Clinton constitutionally eligible (otherwise known as the “Saxbe Fix”)?

As in many cases, the answers to these constitutional questions are found in The Heritage Guide to the Constitution, which is the definitive clause-by-clause analysis of our nation’s governing document.  We have reprinted Law Professor David Forte’s brief yet enlightening explanation of the clause here.

Among other things, it is worth reading this piece to see how different presidents have dealt with the issue of constitutional ineligibility under the Emoluments Clause.  While some sought to evade the clause by employing the Saxbe Fix, one president in particular believed that such a move was impermissible, because it didn’t change the fact that the salary had been increased prior to its being decreased.

That president was Ronald Reagan, and the would-be Justice of the Supreme Court who wasn’t nominated because of the Emoluments Clause was Orrin Hatch.

Each branch of our government, including the Congress and the President, has an independent duty to uphold our fundamental law.  As this debate plays out, perhaps we’ll see who takes this duty seriously, and who does not.