pageok
pageok
pageok
Judicial Watch Sues Over Hillary Clinton and the Emoluments Clause:

This happened last week, but I was too swamped to blog about it. Here's the Complaint (in Rodearmel v. Clinton), and the press release:

Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has filed a lawsuit against newly sworn-in Secretary of State Hillary Rodham Clinton on behalf of U.S. Foreign Service Officer and State Department employee David C. Rodearmel, (Rodearmel v. Clinton, et al., (D. District of Columbia)). The lawsuit maintains that Mrs. Clinton is constitutionally ineligible to serve as Secretary of State and that Mr. Rodearmel cannot be forced to serve under the former U.S. Senator, as it would violate the oath he took as a Foreign Service Officer in 1991 to "support and defend" and "bear true faith and allegiance" to the Constitution of the United States.

Under the "Emoluments" or "Ineligibility" clause of the U.S. Constitution, no member of Congress can be appointed to a civilian position within the U.S. government if the "emoluments" of the position, such as the salary or benefits paid to whoever occupies the office, increased during the term for which the Senator or Representative was elected.

Specifically, article I, section 6 of the U.S. Constitution provides, "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." The text of the provision is an absolute prohibition and does not allow for any exceptions.

According to Judicial Watch's lawsuit, the "emoluments" of the office of U.S. Secretary of State increased three times during Mrs. Clinton's most recent U.S. Senate term. That term, which began on January 4, 2007, does not expire until January 2013, regardless of Mrs. Clinton's recent resignation. The lawsuit notes that Congress attempted to evade this clear constitutional prohibition with a so-called "Saxbe fix" last month, reducing the Secretary of State's salary to the level in effect on January 1, 2007. This maneuver, first used in the Taft Administration, has been more frequently used in recent years by both parties, allowing notably Republican Senator William Saxbe to become U.S. Attorney General in 1973 and Democratic Senator Lloyd Bentsen to become Treasury Secretary in 1993. A similar "fix" has been enacted for Senator Ken Salazar to join the Obama Cabinet as Secretary of the Interior.

Judicial Watch's lawsuit, however, points out that the legislation "does not and cannot change the historical fact that the 'compensation and other emoluments' of the office of the U.S. Secretary of State increased during Defendant Clinton's tenure in the U.S. Senate ...." The U.S. District Court for the District of Columbia is required to give expedited consideration to the lawsuit.

"This historic legal challenge should remind politicians of both parties that the U.S. Constitution is not to be trifled with," said Judicial Watch President Tom Fitton. "Mrs. Clinton is constitutionally ineligible to serve as the U.S. Secretary of State until at least 2013, when her second term in the U.S. Senate expires. We hope the courts will put a stop to these end runs around the Constitution and affirm the rule of law."

For our earlier posts on the subject, see here; as I noted there, I'm tentatively inclined to think that the Clinton appointment doesn't violate the Emoluments Clause, but I thought I'd link to the arguments of those who take the contrary view (as I also had earlier, quoting Prof. Michael Stokes Paulsen).

Steve:
Good luck with that standing argument.

I am generally pleased by this lawsuit because it tends to make the textualists look rather silly.
2.5.2009 4:34pm
Anon321:
Certainly seems like there will be a standing problem here. The notion that Rodearmel has standing because he took an oath to support and defend the Constitution seems suspect. Under that theory, wouldn't all federal officers who take the oath have standing to challenge any constitutional violation?

I take it that he would say that following her orders forces him to violate his oath, since she was (allegedly) appointed in violation of the Emoluments Clause. But even if that's so, (a) shouldn't he have to point to an order of hers that he's following (rather than to the mere fact of her appointment) to establish an injury in fact, and (b) would there not also be a problem of redressability, since any subsequent and properly appointed Sec. of State will issue the same order, since he or she takes directives from the President?
2.5.2009 4:36pm
wooga:
I have no relevant federal law experience, but why couldn't Congress just bypass the emoluments clause by reverting the pay changes "nunc pro tunc"? That way, as far as the courts would be concerned, the pay increases would cease to have ever existed. I've seen the doctrine frequently used in California state court as a "judicial time machine" to fix screwups as fast as possible.
2.5.2009 4:37pm
Anon321:
Also, "The U.S. District Court for the District of Columbia is required to give expedited consideration to the lawsuit."

Is that right? Seems like that should read "requested to give expedited consideration," but if the district court really is so required, I'd be curious to know why.
2.5.2009 4:38pm
Anderson (mail):
I have never been one for telling courts they "must" or are "required" to do anything.

"This Court should reverse" is about as frisky as I get.

But others' mileage may vary.
2.5.2009 4:40pm
Melancton Smith:
I agree they satisfied the intent of the emoluments clause but not the exact wording. Perhaps the wording needs to be changed via article 5 to match the intent.
2.5.2009 4:41pm
GA Onlooker:
I believe the particular wording of the Saxbe fix legislation for Mrs. Clinton required the court to give expedited consideration as well as stated the venue, and, IIRC, direct appealability to the Sup Ct.
2.5.2009 4:42pm
senate wren:
Plain text of Constitution as written suggests she is not eligible. Saxbe fix addresses what we think the spirit of the Emoluments clause is, but does not address the letter. So fix does not work and she is ineligible. However, this outcome is quite absurd, so the courts will have to skirt the issue on standing grounds. This is unfortunate, because it would expand the range of issues that are not subject to court review because nobody has standing.
2.5.2009 4:46pm
Anon321:
Did a bit more digging. Public Law 110-455 says the following:

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.

So, the statute does in fact require the district court to expedite review. I still wonder whether the plaintiff "has been aggrieved by an action of the Secretary of State," though.
2.5.2009 4:48pm
CMH:

Also, "The U.S. District Court for the District of Columbia is required to give expedited consideration to the lawsuit."

Is that right? Seems like that should read "requested to give expedited consideration," but if the district court really is so required, I'd be curious to know why.


From Section 1(b)(2) of the law [PL 110-455]: "Any claim challenging the constitutionality of the appointment...shall be heard and determined by a panel of three judges...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."

With that being said: I sure as hell would never tell a Court what it is "required" to do. Even with a Congressional directive backing me up, I'd still ask nicely.
2.5.2009 4:58pm
Anderson (mail):
Perhaps Obama should loudly announce his intention to appoint George Soros to the position, if Clinton is forced to vacate it.
2.5.2009 5:15pm
Bama 1L:
Rodearmel is planning to lose on standing and refile. He also has to feed his family.

Evidence:

1. The current standing argument is, umm, a stretch.

2. Rodearmel is hoping to get fired, which will give him a redressable injury from a specific act of the secretary.

3. In fact, he seems to consider himself fired already. See the constructive discharge argument at para. 19. Yes, when you conclude your boss is a fraud, you don't have to go to work anymore--indeed, honor demands that you stay home!

4. The clincher: why else would the complaint contain Rodearmel's résumé at para. 6? He's getting a jump on the job hunt. Notice also the values statement at para. 8.
2.5.2009 5:17pm
Pliny, the Elder (mail):
Didn't Bruce Ackerman write an article on this called "Is LLoyd Bentsen Unconstitutional?"
2.5.2009 5:27pm
wm13:
I know that this issue has been discussed to death, but a point that has not been noted, I think, is the use of the perfect tense ("shall have been encreased") in the relevant text. Any classically educated person, a category which would have included pretty much all the Framers, would only use the perfect tense for an action which occurred in the past AND has a present effect. So if the emoluments increased and went back down, as is the case here, the perfect tense would be inappropriate. This grammatical analysis (which I suspect resonates only with those few now living who spent hours doing schoolboy Latin and Greek) supports the view that the "Saxbe fix" is constitutional.

Note that Judicial Watch, in the quoted passage, totally elides this point, by stating that the emoluments "increased." That is a correct statement, but the use of a simple aorist or preterit tense does not reflect the Constitution. It is true that the emoluments "increased," but it is not true that the emoluments "have been increased."
2.5.2009 6:05pm
GMH:

However, this outcome is quite absurd, so the courts will have to skirt the issue on standing grounds. This is unfortunate, because it would expand the range of issues that are not subject to court review because nobody has standing.


Maybe this limits standing even further. But I think it's more likely that, just as they'll write this one off for its absurdity, they'll squint hard to find support for standing as soon as some less superficial case comes along.
2.5.2009 6:15pm
Guest14:
Any classically educated person, a category which would have included pretty much all the Framers, would only use the perfect tense for an action which occurred in the past AND has a present effect.
Is the rule any different today? For example, if the Denver office had fired 40 people and hired 30 since the last time I checked in, and someone told me, "since you last checked in, staffing in the Denver office has been increased", I would conclude that they simply did not speak English.

I'm certainly not classically educated.
2.5.2009 6:26pm
ReaderY:
An interesting standing claim -- arguing that, as a foreign service officer, accepting Clinton as his boss would cause him to violate his oath to uphold the constitution. Does one lose anything concrete by being in violation of ones oath? What exactly is the harm he is experiencing and which he claims can be redressed by a favorable judicial decision. Clearly he has no realistic risk of prosecution for perjury if he obeys Mrs. Clinton. Just as clearly, he has no risk of losing his reputation in the community by obeying Mrs. Clinton. The community doesn't regard his obeying her as violating his oath and can be expected to continue to think this way absent instruction by a judge. If a grievance wouldn't exist but for a court decision, the decision would seem more accurately described as creating the grievance rather than resolving it, and hence redressability would seem to fail.

It would seem that the loss he experiences reflects his relationship with his own conscience -- his own sense of self-esteem and sense of himself as an honest person who does the right thing and abides by his word. It's not clear to me that such a loss is judicially redressable. One could argue that the sense of anguish the plaintiff feels is caused, not by the United States or Mrs. Clinton, but by the plaintiff's own conscience. Disputes between people and their consciences are not easily resolvable by courts.

If plaintiff's logic held, it would would seem that every time a person did an action which caused someone else to break his word, that person would have a grievance.

If I were an investment banker who solemnly took a sworn oath to buy a jet airplane this, and the United States cause my employer to fail to give me an expected bonus which rendered me unable to purchase it, would I have a grievance against the United States for causing me to break my oath?

What's the difference between the two cases? It's true that one is a public oath and the other purely personal. But how does a personal interpretation of a public oath to mean something different from what everyone else involved believes create a practical result that is any different from a purely personal oath?
2.5.2009 6:37pm
Bretzky (mail):
Standing...Political question...The Supreme Court not having even half the nerve required to tell the President that the person he picked, and who the Senate ratified, to be his Secretary of State is ineligible for the position under the Constitution even if it is the correct constitutional interpretation...

Take your pick. They're all good reasons why such a lawsuit hasn't got a snowball's chance.
2.5.2009 9:13pm
TruePath (mail) (www):
I see that Guest14 already beat me to the point but I'll throw in another example. Suppose a rule for filing your income tax form directed you to "Enter 1 if the aggregate value of your IRA increased over the last year." No one would understand that sentence to require people who were net losers over the whole year but net winners at some intermediate point to enter 1.

Seems to me the language can mean either "was increased at any point" and "has increased on net" so the purpose of the restriction needs to be investigated to choose the correct interpretation.

This having been said there is a somewhat plausible argument that any increase, even one that has been reversed, bars that person from the office. One might contend the vagueness above would seem to allow only two interpratations: either eligeability is lost if there is a net increases or it is lost if there is any increase.

Now assume that the prior congress raised the salaries of many government officials to astronomical rates and at the start of the term the new congress cut those salaries back to more reasonable levels. Even though there would have been no net increase appointing a representative who worked tirelessly that term to boost the salary back to a higher level on the expectation they would be appointed to that job would seem to be in direct conflict with the obvious intent of the clause. Thus, if you insist on only these two interpretations this would argue that the more restrictive one be accepted.

Of course I wouldn't be so strictly textual and I would want the court to interpret the clause to allow appointment only at the minimal salary enacted during their tenure in congress.
2.5.2009 9:54pm
Gabriel McCall (mail):

I know that this issue has been discussed to death, but a point that has not been noted, I think, is the use of the perfect tense ("shall have been encreased") in the relevant text. Any classically educated person, a category which would have included pretty much all the Framers, would only use the perfect tense for an action which occurred in the past AND has a present effect. So if the emoluments increased and went back down, as is the case here, the perfect tense would be inappropriate.


You know, you're absolutely right. If they had meant to use a past tense, they could and would have just done so. The Saxbe fix fails to address "were encreased" (and "should have been encreased") but successfully fixes "shall have been encreased."
2.5.2009 10:14pm
Gabriel McCall (mail):

"Enter 1 if the aggregate value of your IRA increased over the last year." No one would understand that sentence to require people who were net losers over the whole year but net winners at some intermediate point to enter 1.


If it says "increased over the last year", I enter 0. But if it says "increased during the last year", I enter 1. If it says "has been increased during the last year", I enter 0.

It's a lawyerly nitpick, and perhaps unfair for the IRS to demand of the general taxpayer, but I think it's reasonable to expect a more nuanced understanding of the language from someone who was both elected to Congress and then appointed to a federal post... and from the judges who would make the call.
2.5.2009 10:20pm
Public_Defender (mail):
Legislatures tell courts all the time to give priority to this kind of case or that kind of case. Criminal over civil. Juvenile over criminal. Adoption disputes over everything. Etc. I too wonder if such provisions are proper under separations of powers, but courts tend to take the direction seriously. See Professor Cassell's "victims rights" cases, for example.
2.5.2009 10:21pm
Eli Rabett (www):
Why fire someone when you can file them in a cloths closet in Somalia?

Anyhow, we now have Senator Gregg as well.
2.5.2009 10:51pm
XON:
I think it's a bit sad that everyone is sort of snickering into their sleeves about this one; the likely outcome notwithstanding. If there were ever a case that is, truly, dead to rights, this is it. (and so were the previous ones.)

Legislators enacting self-serving legislation has been unseemly since ancient times. The relevant parts of the Sixth couldn't be clearer. If you are a federal legislator, you can't hold a federal office for which you controlled the emoluments.

The Saxby fix is actually a doubly-cynical response. First, it's mere existence demonstrates that what can be given can be taken away, but if it can be taken away, IT CAN JUST AS EASILY GE GIVEN BACK.

Second, the fact that someone actually engaged in the necessary sophistry to try and defeat the prohibition says that we, as a republic, are tired of and done with liberty. Our legislature has enacted, and our courts upheld an act that creates a literal aristocracy. The question is: why isn't this a class action by all the employees of State?

Another pathetic angle of this case and the response to this is what it says about what our Federal officers have become. It was, at one point, a matter of "fortunes, and. . . sacred honor." I have to ask, how would we have the officers at State act? If the incumbent were a traitor, or advocated the overthrow of the government, or were a murderer or embezzler, (or perhaps, a tax scofflaw. . .), would we be pleased or proud of them if they shrugged their shoulders, mumbled something about "archaic Oath" and "pay my mortgage", and carried out the orders given to them? Nuremberg, anyone?

The fact that the case has to be brought in the first place is outrageous. The fact that we all just languidly watch and giggle is distressing in the extreme. . . or ought to be.
2.5.2009 10:59pm
KnicksFan33:

I know that this issue has been discussed to death, but a point that has not been noted, I think, is the use of the perfect tense ("shall have been encreased") in the relevant text. Any classically educated person, a category which would have included pretty much all the Framers, would only use the perfect tense for an action which occurred in the past AND has a present effect. So if the emoluments increased and went back down, as is the case here, the perfect tense would be inappropriate.

wm13 and GabrielMcCall: Very interesting thought -- but as a grammatical matter, isn't a present participle required to extend the past perfect tense to create the subsequent effect? In other words, could "shall have been encreased" be a past perfect passive tense, akin to a prohibition like: No Senator or Representative shall be appointed to a civil office if (s)he shall have been contacted by a fundraiser for the President in the preceding election.
2.5.2009 11:08pm
GMH:

Nuremberg, anyone?


"Godwin's Law and the Emoluments clause."

Best note title ever?
2.5.2009 11:33pm
Bill McGonigle (www):
This is what happens when you mess with a man's pastor.

Check.
2.5.2009 11:42pm
Gulf Coast Bandit (mail):
I'm getting together a larger post on the grammar of this, but it just occurred to me that Sen. Gregg will need a Saxby fix also.
2.6.2009 12:55am
SeaLawyer:

Certainly seems like there will be a standing problem here. The notion that Rodearmel has standing because he took an oath to support and defend the Constitution seems suspect. Under that theory, wouldn't all federal officers who take the oath have standing to challenge any constitutional violation?


That is an interesting question. How far can someone go in defending the Constitution?
2.6.2009 10:36am
cmugirl (mail):
Isn't this moot since her pay was cut so she is earning $4700 less than Rice, so as not to run afoul of the Emoulements Clause?

http://www.msnbc.msn.com/id/28179393/

updated 1:35 p.m. ET, Thurs., Dec. 11, 2008

WASHINGTON - Sen. Hillary Rodham Clinton would make about $4,700 less as secretary of state than her predecessor, Condoleezza Rice.

Congress late Wednesday lowered the salary for the nation's top diplomat to keep Clinton's nomination from running afoul of the Constitution.

An obscure section on compensation for public officials, the Emoluments Clause, says that no member of Congress can be appointed to a government post if that job's pay was increased during the lawmaker's current term.

In other words, Clinton, D-N.Y., might have been ineligible to serve in the post because she was serving in Congress when Rice's salary was raised to its current level of $191,300. So late Wednesday, the House and Senate quietly rolled the secretary of state's salary back to $186,600, its level in January 2007 when Clinton began her second Senate term.

Even at the lower rate, Clinton would still get a raise over her Senate salary.

Senators now make $169,300 and are expected to receive a raise to $174,000 next year.

President-elect Barack Obama nominated Clinton to the post earlier this month. She is expected to keep her Senate seat pending confirmation by the Senate next year. Republicans and Democrats have said they expect no serious objections to her confirmation.
2.6.2009 11:07am
_Jon (mail) (www):
I think the clause "during the Time for which he was elected" gives enough wiggle room if the person resigns. I think one could make a good argument that "Time for which he was elected" could be interpreted as ended when the resignation took effect.

I understand that the original intent was to indicate the entire length of the original position (e.g. 6 years under normal circumstances). But with the 'fuzziness' of many phrases being nicked so often, I see this one as being vulnerable to the questioning of the hard definitions of 'Time' in relation to 'elected'.

She'll stay.

I do wish the Court would rule the opposite though.
2.6.2009 11:12am
Oren:
I really don't understand why Judicial Watch, who have no shortage of qualified attorneys, wouldn't wait for a plaintiff with obvious standing. Are they really that impatient?

What a waste of time. Within a few weeks, someone at State will have rock-solid standing.
2.6.2009 12:41pm
Oren:

Isn't this moot since her pay was cut so she is earning $4700 less than Rice, so as not to run afoul of the Emoulements Clause?

The clause says nothing about changing the pay and then changing it back. It's concerned only with whether the position received a boost or not.
2.6.2009 12:42pm
Rich Rostrom (mail):
Jon: The entire point of the Emoluments Clause was to prevent Senators and Representatives from being bribed with fat sinecures. Since a member of Congress must resign before accepting any Executive office, allowing the resignation to end the effect of the EC would nullify it.

Incidentally, Senator Salazar was mentioned as another case. Doesn't this same Clause also apply to Senator Gregg (Commerce)?

Also, has there ever been a case of a Representative appointed to Executive office during a term, after some raise in salaries? Representatives Lahood and Solis have resigned in mid-term to take their present Cabinet seats, but only two weeks or so into the term, so I don't suppose there was any salary action.

However, back in May 1969, Donald Rumsfeld resigned from the House to become Director of the Office of Economic Opportunity. In September 2004, Porter Goss resigned from the House to become Director of the CIA. Did anyone check to see if there was an applicable salary action?

Going much further back, Simon Cameron resigned from the Senate to become Lincoln's first Secretary of War; there was no EC issue raised that I ever heard of, so one may guess there had been no salary action in the previous four years of his term. (Chase and Seward's terms expired in 1861, so they were not affected.)
2.6.2009 5:36pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.