Does Constitution Bar Clinton from Secretary of State Job?
The authors of two law review articles on the emoluments clause say its language apparently bars Hillary Clinton from the job of secretary of state—but they doubt she will actually be ousted from the position.
The Volokh Conspiracy spoke to both authors about the impact of the clause, which bars senators from taking any U.S. civil office during their terms if it was created or its “emoluments” were increased during that time. President Bush issued an executive order earlier this year that increased the salary—an emolument—for the secretary of state.
University of St. Thomas law professor Michael Stokes Paulsen wrote on the blog that the language of the clause would appear to bar Clinton’s appointment “if the Constitution is taken seriously (which it more than occasionally isn’t on these matters, of course).”
Both Paulsen and another law review author on the subject, John O’Connor, said they don’t think the problem can be fixed by a subsequent salary cut. Despite their views, Lloyd Bentsen served as treasury secretary and William Saxbe served as attorney general under a pay cut that became known as the Saxbe fix.
O’Connor says he doubts that a court would confer standing on anyone challenging Clinton, “so this is probably all just an academic exercise.” And Paulsen notes one possible “out-there argument”: The clause applies to any senator or representative “during the time for which he was elected.” Perhaps female senators are exempt from the clause, he writes.
The first name of law professor Michael Stokes Paulsen was corrected on Nov. 29.
