Question and Answer in one day UPDATE
Earlier we asked: Will the “Saxbe Fix” clear the way and will Congress ignore Bill’s foreign donors?
Late in the day comes the answer: SAXBE FIX IS IN, THANKS TO GWB !
WASHINGTON (CNN) – President Bush cleared the way Friday for Hillary Clinton to become secretary of state, signing a law that removes a potential constitutional barrier for the New York senator’s nomination by reducing her prospective pay as the nation’s top diplomat.
By Allan Erickson
It has been said before: Clinton (Bill or Hill, take your pick), the gift that keeps on giving, or taking.
Further, it has been asserted HRC cannot serve as Secretary of State according to the Constitution. With recent revelations about Bill’s foreign contributors to his foundation and library, the waters muddy further. Bill has received $46M from foreign contributors.
As to the constitutional question:
Article 1, Section 6 – U.S. Constitution
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.
*Emolument n : the product (as salary or fees) of an employment
Therefore, according to a strict interpretation, any Senator in office during an increase in the salary of the Secretary of State cannot assume that position while still holding the office of Senator. Secretary of State Rice’s salary was increased by executive order in January 2008.
Intriguing elaboration is found in a recent WSJ report:
“. . . if the emoluments for a certain cabinet position increase, all members of the Congress in office during that time of the increase shall be disqualified from later holding that position. According to Volokh, the Emoluments Clause is in play because the Secretary of State got a cost-of-living adjustment in January of this year, at which time Hillary Clinton was a senator from New York. As John O’Connor, the author of an 1995 Hofstra Law Review article on the Emoluments Clause puts it: “[U]nder a straightforward application of the Emoluments Clause, Senator Clinton is ineligible for appointment as Secretary of State because the emoluments of that office ‘have been increased’ during Senator Clinton’s current Senate term, and this disability continues until the end of ‘the time for which [she] was elected,’ or until January 2013.”
However, other legal scholars cite the “Saxbe Fix.”
Further in the WSJ article:
“President Nixon was confronted with it [Article 1, Section 6] when he wanted to appoint Senator William Saxbe to Attorney General. The solution derived, called the ‘Saxbe Fix,’ reduced the pay level of the cabinet position back to where it was before the hike. Later, Lloyd Bentsen served as Treasury Secretary after the ‘Saxbe Fix’ legislation reduced the salary of that office to its level immediately before Senator Bentsen’s Senate term had begun.”
Some say the Saxbe Fix is constitutional, others say it is not, and still others say it doesn’t matter, the courts will refuse to hear the case, insisting the Executive and Legislative branches work this thing out.
The problem with this later ‘solution’ of course is it leaves the foxes in the chicken coup.
If the Saxbe Fix becomes HRC’s salvation, the cloud of Bill’s foreign contributions still casts a compounding shadow.
Given Bill’s financial disclosures ($500M in contributions) this week, the glaring problems centering on conflicts of interest and the potential for corruption further complicate Hillary’s prospects, as best explained by Dick Morris.
by Dick Morris & Eileen McGann, 12.19.08
“How can Hillary Rodham Clinton mediate and negotiate conflicts in the Middle East impartially when her husband’s library and foundation – over which he has total control – have been bankrolled by the very nations with whom she must negotiate?
“How could a US senator possibly serve dispassionately while her husband was collecting money from these donors on this kind of scale? And how could we have almost elected a president without realizing these conflicts existed? And how on earth can a secretary of state function with these conflicts hanging over her head?
On January 20, 2009, President-Elect Obama takes the oath:
“I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
– Article II, Section I of the U.S. Constitution
THE ULTIMATE QUESTION THEN BECOMES: IS THE NOMINATION AND CONFIRMATION OF HRC AS SECRETARY OF STATE THE BEST WAY TO PROTECT AND DEFEND THE CONSTITUTION, OR WILL IT BE SEEN AS A SLICK WAY TO PAY OFF POLITICAL DEBTS EVEN AT THE RISK OF UNCONSTITUTIONAL ACTION?