Opinion: Obama likely to name Hillary Clinton to Cabinet. But wait! <em>Can</em> he?


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The president-elect, no-drama Barack Obama, is expected to name his new secretary of State, all-drama Hillary Clinton, as early as tomorrow as part of the week’s rollout for his national security team.

But can he?

As pointed out by a number of bloggers in recent hours, including our eloquent friend Susan over at Wake Up America, there’s a clause in the U.S. Constitution (Article One, Section Six) that prohibits senators (or representatives) from taking a civil office if the legislator has voted to increase the pay for that job.

‘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.’


A president-elect who’s a former part-time constitutional law professor, even one without his BlackBerry, presumably is aware of this prohibition, obviously designed to prevent double-dipping and raising your own salary, which is only allowed in Wall Street banks.

And Obama surely knows of its historical precedents.

And if Obama makes the appointment of his former bitter rival, she’ll no doubt take office as the point person for U.S. foreign policy.

But the appointment of the loser of the Democratic presidential nomination by the winner of that nomination and of the subsequent general election wouldn’t be properly Clintonian without some extra dramatic flourishes. This is likely only the beginning of such chapters.

Apparently, President Nixon ran into the same problem when he wanted to appoint Ohio’s Republican Sen. William Saxbe as attorney general.

The solution back then, since dubbed the ‘Saxbe fix,’ was for Congress to pass another law (not without some outspoken dissent from Democratic senators, by the way) reducing the AG’s pay so Saxbe wouldn’t benefit financially from the higher salary he’d previously voted on.

Similar fixes occurred when President Jimmy Carter named Edmund Muskie secretary of State and H. Clinton’s own husband Bill named Lloyd Bentsen to head Treasury.

So much for the actual money aspect and strict construction.

We’re not lawyers. But we do speak English. And to our eyes that constitutional clause doesn’t say anything about getting around the provision by reducing or not benefiting from the increase of said ‘Emoluments.’

It flat-out prohibits taking the civil office if the pay has been increased during the would-be appointee’s elected term. Period. Which it has.


This seems more like a TV scriptwriter’s trick to keep everyone hanging around through the commercials starting tomorrow.

-- Andrew Malcolm

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