Sunday, November 30, 2008

Obama & Hillary About to Violate The Constitution.... AGAIN!

President-elect Barack Obama plans to nominate Senator Hillary Rodham Clinton as his secretary of state on Monday.

Hillary's nomination will be made in the face of the Constitutional prohibition in the Emoluments Clause (Article I, Section 6, clause 2):


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.


That's quite clear. A Senator, such as Hillary, is prohibited from serving in any federal office "created" or the "emoluments whereof" were increased during the Senator's term.

The salary of the Secretary of State was increased in January 2008 by an executive order, promulgated pursuant to a 1990s cost of living adjustment statute. Because the increase occurred during the time Hillary was a Senator she can not be the Secretary of state.

This issue has been discussed quite a bit in the blogoshpere during the last couple of weeks. One of my favorite Constitutional scholars, Professor Eugene Volokh -- the Gary T. Schwartz Professor of Law at UCLA School of Law, has written about Hillary and the Emoluments Clause. Professor Volokh concludes "it is beyond dispute that Senator Clinton is currently ineligible for appointment as secretary of State." I agree.

Unless one views the Constitution's rules as rules that may be dispensed with when inconvenient; or as not really stating rules at all (but "standards" or "principles" to be viewed at more-convenient levels of generality); or as not applicable where a lawsuit might not be brought; or as not applicable to Democratic administrations, then the plain linguistic meaning of this chunk of constitutional text forbids the appointment of Hillary Clinton as Secretary of State.

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