Opinion Exchange

We get our fair share of letters based on Internet rumors and the like – at first glance, this letter that arrived yesterday seemed to be one of them (reprinted below in its entirety, minus letter-writer’s ID):

Clinton Appointment Unconstitutional

The U. S. Constitution in the clearest of terms prohibits a Senator or Representative who has voted for an increase in pay for cabinet officers to be appointed to the cabinet.

Mrs. Clinton has voted for such a pay raise.

The “emoluments” clause of the Constitution is so clear and direct as not to need interpretation. But we can be sure that a reason will be manufactured for violating its terms. However, no valid reason is possible. Her appointment is clearly null and void.

Turns out, there is actually something to this one – unfortunately, the letter-writer’s account of the situation is both inadequate and inaccurate.

The writer is referring to a clause in the U.S. Constitution that reads: “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….” (The word “Emoluments” refers to one’s salary/compensation).

In January, President Bush issued an executive order that gave a cost-of-living raise to Cabinet secretaries. Some people now are arguing that the “Emoluments Clause” applies to Sen. Hillary Clinton, nominated by President-elect Barack Obama to be his secretary of state, the salary for which was raised “during the time for which she was elected”; therefore she is ineligible to serve in the position.

First of all, contrary to the letter-writer’s statement, Clinton did not “vote for” the raise; it was issued via executive order.

The “Emoluments Clause’’ situation came up several times during various 20th century presidencies; the problem was generally resolved by rescinding the raise in question, thus allowing the nominee to serve. This came to be known as the “Saxbe fix,” referring to President Nixon’s 1973 appointment of Sen. William Saxbe as attorney general. However, the “Saxbe fix” remains controversial; some have argued that it does not pass constitutional muster. Two articles about the law that make the case against Clinton’s eligibility can be found at the libertarian/conservative Web site The Volokh Conspiracy. The liberal Web site Daily Kos also has a diary debating the eligibility question, see link here.

No question that this is a worthy topic, with enough complexities and nuances to make for an interesting debate on our Letters page. For instance, should Clinton become secretary of state, does the fact that she had no say or role in the raise preserve the “spirit” of the clause—which presumably was meant to prevent members of Congress who anticipated future appointments to take action resulting in their direct personal gain?

Too bad the letter-writer above dropped the ball by not taking the time to fully explain the issue—or even get a basic fact correct.