or at least getting there: The Congress passed a bill, S.J. Res. 46, lowering the Secretary of State's salary to its pre-raise levels, thus allowing Senator Hillary Clinton to be appointed to the office. I have no reason to doubt that the President will sign it. Here's the text of the bill:
JOINT RESOLUTION
Ensuring that the compensation and other emoluments attached to the office of Secretary of State are those which were in effect on January 1, 2007.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. COMPENSATION AND OTHER EMOLUMENTS ATTACHED TO THE OFFICE OF SECRETARY OF STATE.
(a) In General- The compensation and other emoluments attached to the office of Secretary of State shall be those in effect January 1, 2007, notwithstanding any increase in such compensation or emoluments after that date under any provision of law, or provision which has the force and effect of law, that is enacted or becomes effective during the period beginning at noon of January 3, 2007, and ending at noon of January 3, 2013.
(b) Civil Action and Appeal-
(1) JURISDICTION- Any person aggrieved by an action of the Secretary of State may bring a civil action in the United States District Court for the District of Columbia to contest the constitutionality of the appointment and continuance in office of the Secretary of State on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution. The United States District Court for the District of Columbia shall have exclusive jurisdiction over such a civil action, without regard to the sum or value of the matter in controversy.
(2) THREE JUDGE PANEL- Any claim challenging the constitutionality of the appointment and continuance in office of the Secretary of State on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution, in an action brought under paragraph (1) shall be heard and determined by a panel of three judges in accordance with section 2284 of title 28, United States Code. It shall be the duty of the district court to advance on the docket and to expedite the disposition of any matter brought under this subsection.
(3) APPEAL-
(A) DIRECT APPEAL TO SUPREME COURT- An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order upon the validity of the appointment and continuance in office of the Secretary of State under article I, section 6, clause 2, of the Constitution, entered in any action brought under this subsection. Any such appeal shall be taken by a notice of appeal filed within 20 days after such judgment, decree, or order is entered.
(B) JURISDICTION- The Supreme Court shall, if it has not previously ruled on the question presented by an appeal taken under subparagraph (A), accept jurisdiction over the appeal, advance the appeal on the docket, and expedite the appeal.
(c) Effective Date- This joint resolution shall take effect at 12:00 p.m. on January 20, 2009.
I should note that, though some people think the Saxbe fix doesn't make the appointment constitutional, the bulk of recent precedent from the Legislative and Executive Branches supports its constitutionality, and the text strikes me as ambiguous on the subject. For more on this issue, including the text of the underlying constitutional provision, a bit about historical precedent, the views of some scholars, and speculation on whether the constitutionality of the appointment can be challenged in court, see here.
Related Posts (on one page):
- The Resultative Perfect
- New Justice Department Opinion on the Ineligibility Clause (Sometimes Also Called the Emoluments Clause):
- Judicial Watch Sues Over Hillary Clinton and the Emoluments Clause:
- The Saxbe Fix Is In,
- Why Isn't Vice-President-Elect Biden Affected by the Emoluments Clause?
- More on Hillary Clinton and the Emoluments Clause:
- Hillary Clinton and the Emoluments Clause:
"If you're thinking about buying a computer, for instance, and you ask "Has the price of this computer been increased during the last year?," it seems to me quite possible that you would mean "Has it been increased so that it now costs more than it cost a year ago?"
I think this is the question, or I suppose the test, set forth here:
"...which shall have been created, or the Emoluments whereof shall have been encreased during such time"
The problem I have in concluding the discussion there is due to the excellent point made by John O'Connor in his discussion of the purpose of the clause (from his interpretation of the constitutional convention):
"If, contrary to the Emoluments Clause’s terms, Congress can restore its Members’ eligibility for appointment by reducing the office’s salary, the Emoluments Clause ceases to serve its function as providing a constitutional disincentive for regular increases in the salaries of federal offices."
So what trumps here? I would like to say that a plain reading of the clause, which I think allows the amendment, should control- but I don't know exactly when framer's intent should be taken into account, and what weight it should be given. Here it would bar an otherwise very reasonable interpretation of the passage. That seems problematic to me.
Senator Robert C. Byrd "we should not delude the American people into thinking a way can be found around the constitutional obstacle."
But part of me says the text is the text is the text, you know? I guess what I find befuddling is i don't understand their logic at all if they really intended to invalidate even the saxby fix.
Btw, i will note several things about this. Now I thought a joint resolution doesn't really have the force of law, especially given that the president doesn't sign it. Am I missing something?
Second, i notice that it expires before even one term is up. Curious...
btw, i also hear the republicans want bill on the stand to testify in the confirmation hearings. guys, don't go there. trust me. its a trap.
While original meaning may trump original intent, a strict interpretation of the law no longer serves a purpose. Nowadays, people (Representatives) not even born when the Cabinet salary-raising mechanism was enacted could be subject to this prohibition. The practical effect of the clause would be to deny the incoming President the service of 2/3 of the Senate.
I wondered the same thing. Even if there aren't any senators or other public officials who want to raise the issue, there are surely some people who would be willing to take a shot at disqualifying Clinton. Unless the phrase "person aggrieved by an action of the Secretary of State" has some technical meaning that I'm unaware of, I'd think that Mrs. Clinton's more strident opponents would be able to find someone to file suit.
It expires when Hillary's current Senate term ends.
"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."
Does that mean she can't be a Senator?
Same for just about every enumerated position on the Constitution. It seems there's an easier fix here...
"An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order upon the validity of the appointment and continuance in office of the Secretary of State under article I, section 6, clause 2, of the Constitution, entered in any action brought under this subsection. "
Would it merit a pocket veto?
Obama should wait until after she quits her Senate seat and then veto it. You could sell tickets to that tantrum.
That would be a really bad move. Then she and her husband would be free to spend the next four years undermining President Obama at every turn.
This way, he has her on a leash and if she decides to revolt, she is just a "disgruntled former administration official."
It means someone who is affected by some other action of the Secretary, which they would then have standing to challenge. Say, some group that is put on a terrorist watchlist, a fired foreign service officer, an exporter regulated in some way by the State Dept., etc. As part of their challenge to the "action" against them, they can argue that the SoS isn't constitutionally eligible to hold office. The statute tells courts how to handle such a claim.
As I'm sure you know, the male pronoun can be used to refer to a person of indeterminate gender. Just because you don't like it don't mean it ain't so.
Really -- I mean, just what use is a written constitution if you can't ignore it whenever it becomes inconvenient. While they were at it, why didn't the House and the Senate create a sneaky fix to avoid that troublesome 4th Amendment - like establishing an irrebuttable presumption of consent any time law enforcement personnel find incriminating evidence without the benefit of a warrant. There are literally dozens of Constitutional provisions that I find inconvenient -- like the 16th Amendment, just for an example. If Congress is free to ignore Article I, Section 6, Clause 2, then why shouldn't I be free to choose which parts of the Constitution I will ignore.
Me neither!
No. See section (c), quoted in the original post.
Yes, heavens forbid that a law actually mean what it says. It's just too much trouble to actually change laws that are outdated - best just to skirt them.
I don't think it too much of a stretch to interpret the emoluments clause as not forbidding appointment where the salary has been "rolled back" as I think that is a reasonable interpretation AND accords with common sense, and original intent, since to do otherwise would allow for an outgoing Congress/President to "blackball" any current Senators or re-elected Representatives from serving in the incoming administration.
Consider a situation in which there is say a Republican majority in Congress and a Republican President -- then along comes an election and suddently there is a Democratic President-elect who announces his intention to appoint to his cabinet several people who are currently members of Congress. To forestall this, the existing "lame-duck" Congress passes a bill, signed by the President, raising the salary of all cabinet positions by $1 per month effective immediately. All of a sudden no existing member of Congress can be appointed to any cabinet position under the new President because of something that the prior "lame-duck" Congress and President did. Unless you agree with the interpretation that "rolling back" the salary to what it was before can overcome it, in the sense that if the salary is what it was before, there has been no increase for purposes of the emoluments clause, even if for a brief period someone holding that appointed office would have, at the time, have had an increased salary.
Or for a position where an executive order would be sufficient to affect the salary (e.g. where the legislation relating to the salary provided for such?), an outgoing President could forestall any appointments of current members of Congress unilaterally simply by issuing an executive order raising the salary immediately by even a token amount.
Are there any other provisions in the U.S. Code that require the Supreme Court to hear a case?
Compare:
"Has the price been increased during the last year?"
"Has the price increased during the last year?"
The former implicitly means at any point during the last year. That's the purpose of the "has been increased" construction.
Well it's not temporal as has been suggested. "Been" here indicates the sentence's voice. One is active and the other is passive.
"Has the fish been eaten?"
vs.
"Has the fish eaten?"
Of course in that pair, the difference is clear, because "to eat" is always transitive. "To increase" wobbles between transitive and reflexive intransitive; to be the subject of "to increase" is sometimes the same as to be the direct object:
"Profits increased." ("Profits" is the grammatical subject but is also what received the verb's action.")
and sometimes not:
"Management increased profits." ("Management" is the subject and performed the verb's action on "profits."
I believe that eighteenth-century writers were much more likely to think of "to increase" as a transitive verb calling for a separate subject and direct object. It also nicely parallels the preceding verb phrase built around "to create," which is always transitive.
If you wanted to go crazy with this, you could say that the use of "to be increased" rather than "to increase" means that there must be someone doing the increasing rather than the increase happening by itself. But I think that is chasing meaning where none exists.
(I continue to believe that "during the time for which he was elected" means time actually serving and that resignation ends that time.)
In my opinion, the only thing that saves Hillary's eligibility as SoS is that an standard of living increase is not an actual increase. It simply prevents an actual decrease.
I simply find no plausible meaning for "shall have been" other than "at some time in the past". Once something "has been", it "has been".
Not many anymore, but most commonly various election law/Voting Rights Act disputes (which are likewise heard initially by 3-judge district courts).
If a federal judge is appointed when the annual salary is 100K, and then the salary is increased to 150K, and then the salary is brought back to 100K, has the judge's salary been diminished during his continunce in office (in violation of Article III)? I mean, when you net it out, the judge's salary hasn't diminished (at least not in nominal dollars), it's back exactly where it was at the time of appointment.
But the Supreme Court held that a judge's salary has "been diminished" in violation of Article III under such a set of facts because it was in fact reduced, even if the end result is no lower than the salary at the time of appointment. Booth v. United States, 291 U.S. 339, 352 (1934). The lesson was that the prohibition on diminution means that the salary can only move in one direction, regardless of net effect. Why wouldn't the same line of thought apply to a prohibition on increases in salaries?
It only prevents direct appointments from the legislature to new or newly-lucrative offices. That's all it does. To be eligible for appointment to one of those offices, you have to resign and then take the chance that you won't actually get the job.
I can't think of another one that is as explicit as this one. The Voting Rights Act and McCain-Feingold both had a similar 3-judge panel of the D.C. Circuit and direct appeal to the Supreme Court, but in those cases the litigants still have to convince the Court to "note probable jurisdiction." For instance, McCain Feingold says:
"An appeal may be taken directly to the Supreme Court of the United States from any final judgment, decree, or order issued by any court ruling on the constitutionality of any provision of this Act or amendment made by this Act."
I'm not aware of any other provision that requires "The Supreme Court shall, if it has not previously ruled on the question presented by an appeal taken under subparagraph (A), accept jurisdiction over the appeal, advance the appeal on the docket, and expedite the appeal."
There are doctrines where the official acts of someone with appaent authority to act as a federal officer can remain valid even if it later turns out the person was ineligible for the post. I'm not sure what the standard is for this, or if it would apply in this type of situation.
On this subject: whatever happened to the Patent Office controversy? (BAPI decisions' validity in doubt because head of office lost Constitutional authority to appoint members after demotion to Undersecretary of Commerce, if I remember correctly.)
Increase in the cost of an "in-kind" emolument like a tonsillectomy or a parking space does not leave the SoS any better off, so I would say maintaining the level of such emoluments does not constitute an increase.
Intersting. I think Clinton is waiting to be confirmed to resign. She won't take the oath until after her resignation.
(Though in fairness, that's largely because they've decided the emoluments clause can be ignored just like any amendments that also seem quaint.)
I was next in line for the job, so me.
1. A person who doesn't much care about habeas corpus or the Fourth Amendment, but would give his life for the Emoluments Clause.
@Femiknowledge,
As I'm sure you know, the male pronoun can be used to refer to a person of indeterminate gender.
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(Don't say it, Hoosier. Don't say it, Hooiser. Don't say it . . . )
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