The appointment of Senator Hillary Rodham Clinton and her recent confirmation as Secretary of State raises a very interesting constitutional question. As discussed previously here, the Constitution would appear to block Clinton from being able to serve in this capacity under Article I, Section 6. Now, Judicial Watch has filed a lawsuit on behalf of U.S. Foreign Service Officer and State Department employee David C. Rodearmel to make just such a case.
The 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.”
One such emolument occurred when the salary of the Secretary of State was 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 — presumably making Clinton ineligible until that time.
Congress is hoping to avoid such a ruling with a “Saxbe fix” last month when they returned the salary to the level in effect on January 1, 2007. Technically, that would not appear to alter the language of the provision. The Saxbe fix has never been fully reviewed and this may be just the case to do it.
I believe that there is a legitimate question here. I am amazed that Judicial Watch got this individual to come forward. The greatest problem was always a question of standing.
Of course, it would be interesting if they won. Clinton has already given up her seat and presumably Obama would not want a placeholder to serve until 2013. This might force a switch to United Nations ambassador or some other position. The Administration, however, would likely draw out any appeals, even if it did lose. Of course, the courts could just accept the Saxbe fix and avoid the controversy. However, the D.C. Circuit is contains many textualists who might not find such improvisation appealing.
For the statement from Judicial Watch, click here.
For the full story, click here.
On Monday, June 7, 2010, the Supreme Court wrote finis to this particular constitutional episode.
http://www.supremecourt.gov/orders/courtorders/060710zor.pdf
The Court dismissed the appeal for want of jurisdiction. This case was listed under “APPEAL – SUMMARY DISPOSITION.” It was not a denial of certiorari.
The District Court had not entered “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.” Joint Resolution on Compensation and Other Emoluments Attached to the Office of Secretary of State, §1(b)(3)(A), Pub. L. 110-455, 122 Stat. 5036, note following 5 U. S. C. §5312.
So the Supreme Court dismissed the appeal.
Once again, the effort of Congress to try to give the federal courts jurisdiction to resolve the underlying Emoluments Clause question failed.
The first effort, back in 1973, dealing with the naming of Saxbe as Attorney General, never resulted in any reported decision.
Lottakatz: “Oaths as a vehicle for legal standing seems to me to be a departure from ‘damaged by’ that works against the equal protection spirit of the right to legal redress.”
Reading through the decision, I found the Court tended to agree with you. It analyzed the claim based on Rodearmel’s oath and found it wanting. He just took an oath. He was not ordered to do anything unconstitutional. Any injury was too speculative to give rise to a case or controversy. Without case or controversy, the federal court has no jurisdiction, that is, no power.
The special law that Congress enacted to facilitate challenges to the law was of no avail to the plaintiff, since it could not give standing to a party who had no case or controversy to bring to the court.
The legal challenge to Hillary Clinton’s right to serve as Secretary of State on the basis of the Emoluments Clause was dismissed for lack of subject matter jurisdiction under Rule 12(b)(1). Rodearmel v. Clinton, No. 09-171, U.S. District Court for the District of Columbia,(three-judge court) October 29, 2009.
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2009cv0171-34
@ lottakatz,
You make some good points in your rebuttal and I understand your reasoning. I am unable to reply now, although I will attempt to reply later. Thanks.
Former Federal LEO:
“I support Judicial Watch’s litigation on two venues: … the allowance of standing to challenge the unconstitutionality of an action based on a public servant’s oath of office.”
Vince Treacy:
“I think JT would have to work on a constitutional amendment to address this problem of standing…
Of course, granting this right to ordinary citizens unaffected by the laws could flood the courts.”
Standing as I understand it, is a threshold issue that needs to be narrow enough to discourage frivolity from real cause but universal enough in valid application to be non-discriminatory.
Oaths as a vehicle for legal standing seems to me to be a departure from ‘damaged by’ that works against the equal protection spirit of the right to legal redress. As a civil servant (at one point) myself I took the oath. Can all Federal employee’s now hope to have a greater stake in challenging a law, rule, regulation, EO than I might have as a citizen that has not suffered real damage?
Naturalized citizens take an oath that has the same provision as Federal employees to: “…support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same;…” (the Oath of Allegiance for naturalized citizens)
Would this set aside naturalized citizens as a special class for the purpose of legal standing in a Federal court?
If one takes the oath as a naturalizing citizen does that presuppose that all natural born citizens have the same duties and rights as enumerated in the oath; or visa-versa?
If Federal sector oaths give standing in Federal Court, how does that impact on State administered oaths and Federal Courts or State Courts?
I see this change to determining ‘standing’ as having potentially serious, potentially discriminatory, and far reaching effects. It injects uncertainty and potential chaos into a well known and non-discriminatory legal principle. I don’t think the decision was well thought out. I am not comfortable with Government employees having greater recourse to the courts (possibly as a super-class of plaintiff’s) than regular citizens.
Just sayin’
I would like to take a moment to say that I am much more satisfied with some of the recent dissenting posts on here. Their comments are well worded if alittle harsh, but we do all get emotional about these things. Further, they’re actually replying intelligently instead of just spamming Faux News conservative pundits.
We still have some trolls for now but I would like to thank everyone who’s actually talking.
I have an immense dislike for Hillary ‘will cry for votes’ Clinton. I worry that her appointment was bad move, clearly done for political reasons rather than because she would be a good SoS. The massive entanglements that her husband has with foreign parties and the abuse of power he committed as president aren’t cause for me to put much faith in her character.
Titonwan, I regret to inform you that there is no constitutional prohibition against a “globalist, neoliberal, warmongering whore” serving as Secretary of State. Nor have I been able to find any exclusionary language relating to “skuzzbuckets.” The issues raised in this thread are serious and the respondents have attempted to be thoughtful and rational. If your comments represent your best efforts on the constitutional questions, you probably should not waste your time moving the court for leave to file an amicus brief. I address this as well to the acknowledged yahoo who believes that Tom Daschle has something to do with the topic.
Once you get past the standing issue,
“Emoluments whereof shall have been encreased” + Saxbe fix = moot.
“Literalists” are intellectually dishonest. They cherry pick the provisions they find literal and those they don’t. Hence, we are given things like the FISA Court. There are numerous exceptions and nuances limiting our First Amendment rights not stated in the Constitution. The most perplexing is these radical right activist judges grant corporations the same rights as humans; please show me where that language is in the Constitution. And don’t even get me started on abortion.
I desperately wish for Shillary to be thrown out of this appointment as she’s a proven globalist, neoliberal, warmongering whore who cut Obama worse than any Republican during the primaries. I’m dead sure she only got this appointment as a bargain for not tearing the DNC apart in her “inherent coronation” aspirations. To compare JOHN MCCAIN more qualified was the lowest of the low and she’s just a skuzzbucket. Hope she fails with every fiber of my being. Other than that, I don’t have a problem with her! 🙂
“[A]s long as they will confront any and all violations of the U.S. Constitution, attempt to uphold the rule of law, and force our government to work with transparency and accountability, then I am “on their side” at that moment.”
I think you captured the mood, FFLEO.
I wrote my script and then I just read Vince Tracey’s post. His arguments appear plausible, although I will post anyway because how often does one get the chance to argue with lawyers without incurring exorbitant charges/fees, or worse?
I support Judicial Watch’s litigation on two venues: the constitutional question and the allowance of standing to challenge the unconstitutionality of an action based on a public servant’s oath of office.
The constitutional violation in this instance is unconditionally factual because the provision allows for no exceptions whatsoever. A lawsuit is the only means to ensure that this now factual question becomes a legal statement clarifying any apparent legal ambiguities and thereby reinforcing the provision’s lawful intent. Otherwise, any ideologue can proffer any exception to any Article of the U.S. Constitution anytime that skewed ideologies are at odds with the absolute prohibitions within those Articles. An affirmation of the rule of law through a successful lawsuit will demonstrate that the U.S. Constitution is not to be trifled with by political party whims in vogue at any one time over the course of our democratic process.
Similarly, as citizens we must exercise the rights we are granted under the Bill of Rights to ensure that we—through ignorance, indifference, courtesy, politeness, deference, or respect for law enforcement officers and the judicial system— do not lose our rights. For example, if an LEO asks you if he can look through your possessions—when he has no legal authority for search and seizure in this instance and although you have absolutely nothing to hide—you should politely say no, with all due respect I would prefer that you do not violate my privacy. Of course, if the LEO has the legal authority to seek your compliance and if he can articulate that power to you depending on the elements involved, then you should comply cheerfully and willingly with his commands. During the span of over two centuries, many people have died and many years of legal wrangling through courts of law have transpired for us to gain our liberties as codified in U.S. Constitution and the Bill of Rights. If we do not exercise our ‘individual’ rights, we are in danger of losing them. The same applies to our U.S. Constitution. Citizens with legal standing must exercise their rights and fulfill their obligations to uphold the rule of law through the courts, if necessary, to contest any violation of any constitutional provision. If we allow politicians of whatever political stripe to skirt those constitutional provisions, then we as a people are imperiled to lose our ‘collective’ rights within our democracy.
The most important aspect of this case for me individually is the granting of legal standing to Mr. Rodearmel based on the oath of office he took as part of his obligations as a public servant. I hold the highest esteem for the oaths I took as a military serviceman, a civil servant, and as an LEO. Pledged oaths of office and their associated codes of conduct exemplified every task I performed as a public servant. I have written previously within this blawg and elsewhere that I am often discouraged by the lack of legal recourse available to punish persons who unethically, and often hubristically, violate their oaths and codes of conduct that they solemnly pledged to honor and uphold. Therefore, I am delighted to see such emphasis granted to Mr. Rodearmel’s oath of office and the importance attached to a pledge.
Perhaps Mr. Rodearmel is an ideologue, he may personally dislike Ms. Clinton, and he might not want to serve under her leadership because of his opinion of her. I personally loathe Ms. Clinton, especially after the Bosnia Sniper Fire incident that she disingenuously repeated even after the irrefutable video and script evidence exposed her outrageous lies and fantasies. The Secretary of State must be extremely credible and I do not know how foreign leaders can take her seriously and trust that what she is telling them (or us) is factual. However, if I were a career civil servant in the Department and under Ms. Clinton’s leadership, I would still abide by my the oath and perform my duties in an exceptional manner as long as all of the provisions of the U.S. Constitution—to which I pledged my oath—were upheld through the rule of law. By all appearances, Ms. Clinton’s appointment is a violation of Article I, section 6 of the U.S. Constitution. My nonprofessional opinion is that Judicial Watch and Mr. Rodearmel have a valid constitutional argument.
I must admit that when I was younger, I often dismissed the ACLU out-of-hand because some of the cases and causes they championed seemed antithetical to basic logic and/or fairness. However, the disastrous and corrupt 8 years of the Bush Administration dramatically changed my mind about such groups/organizations. I never considered Judicial Watch as a wicked-stepsister of the law that I once ascribed to the ACLU. Regardless of whether an organization is liberal or conservative—or misrepresents their philosophical bent—as long as they will confront any and all violations of the U.S. Constitution, attempt to uphold the rule of law, and force our government to work with transparency and accountability, then I am “on their side” at that moment.
Full Disclosure: As a conservative registered Republican, I loathe Bush/Cheney et al. more that I loathe the Clintons, I can abide few people in congress, and I despise the corrupt Wall Street tycoons and bankers who are stealing our tax dollars. However, on the slightly brighter side, I am marginally optimistic about Mr. Obama, for whom I voted, although he might be become as corrupt as his colleagues have demonstrated.
The complaint recites that the law reducing the salary had a provision granting jurisdiction to a three-judge court to hear challenges.
That takes care of jurisdiction, which Congress is authorized to grant under Article III.
It does not take care of the cases or controveries that Article III requires. The U.S. Supreme Court cannot issue advisory opinions. The plaintiff must have standing, an substantial injury, a personal stake, and a real non-hypothetical dispute.
This plaintiff is a foreign service officer who objects to taking orders from the new Secretary. I doubt if that alone would give him standing. It might be different if he refuses to obey an otherwise lawful order and is fired, since he might be able to challenge his dismissal in court as part of his appeal. But not yet, not now, not here. Sorry about that.
The Supreme Judicial Court of Massacusetts, however, is authorized under the state constitution to provide advisory opinions, but review is only availabe to the Governor or the legislature, and only available from the Supreme Judicial Court. I think that this can cover pending legislation, so that it can be amended before it passes to remove the problem.
So, even they do not seem to provide standing to the ordinary citizen to challenge a statute. I think JT would have to work on a constitutional amendment to address this problem of standing and lack of advisory rulings. The proposed amendent need not be narrowly limited to this issue, and could look at other problems of federal jurisdiction that have arisen over the years. Of course, granting this right to ordinary citizens unaffected by the laws could flood the courts.
This case is in the category of legal publicity stunts. It consists of a complaint, a press release, and a dismissal. I think the same people filed a suit against the Senate to force it to seat Blago. Some consitutional experts!
and ANOTHER LIBERAL TAX CHEAT CAUGHT!
Tommy Daschle, the ETHANOL MILLIONAIRE LOBBYIST KING, fessed up to cheating the IRS of over $130,000 since just 2005!
Mr. Daschle landed a lucrative job with big time Democrat Donor Leo Hadley. Hadley has paid Daschle over $2,000,000 AND supplied him with a 24/7 Cadillac and DRIVER.
Poor Tommy Daschle FORGOT (ya sure) the driver & car were taxable just like wages! Anybody else would go to JAIL but Tommy gets to write an “I be sorry” letter and send it to the IRS with his check.
Amazingly, the Messiah Obama still supports Mr. Daschle for a Cabinet Position, which means Obama doesn’t care Daschle is DIRTY, in fact working for Obama – being DIRTY is a PLUS!
America now knoes why Democrats don’t mind raising TAXES! THEY DON”T PAY THEM!
Rangle, Guitner, Caroline Kennedy, Daschle, Meeks, Waters, Dorgan, the list goes ON and ON! TAX CHEATS!
Buddha:
She’s voiced no complaints thus far.
“For the sword outwears its sheath,
And the soul wears out the breast,
And the heart must pause for breath,
And love itself have rest.”
Call me Lord Byron, who penned these words.
How much weight might the precedents set by the two examples JT listed (Lloyd Bentsen and a Nixon appointee) in his December blog have on this issue?
Pure of heart?
Mespo, I didn’t know you were a romantic. Mrs. Mespo probably digs that about you.
JT:
Agreed, and the denil of due process through standing is disturbing. Rodearmel has a point, but I do prefer the pure of heart Constitutional litigant–if there are any of those left. Where are the Mildred Lovings? I’d like Gen. Rodearmel better if he was consistent. Wonder what third world post he’ll garner if he loses?
Mespo:
He may indeed be an ideologue or simply a constitutionalist. These cases often do attract more partisan types, as you suggest. I do not know him or much about him. However, I tend to prefer these matters to be heard by the courts. I believe that there is a legitimate issue under Article I and I would like to see it resolved. I remain very concerned about the use of standing to protect Congress and the President from judicial review. In the last couple of decades, the courts began an aggressive attack on the right of citizens to get review of such matters. It has left parts of our Constitution with little avenue for relief outside of the political system.
JT
Me thinks Mr. Rodearmel doth protest too much. In his statement for public consumption on the Judicial Watch website his attorney says:
“This is our argument in a nutshell: Hillary Clinton is constitutionally ineligible to serve as Secretary of State and 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.
The Complaint says Mr. Rodearmel was commissioner 1991 as a foreign service officer (paragraph 6). The Complaint also boasts that Gen. Rodearmel (he’s retired from the Army as an intelligence officer) takes his oath to defend the Constitution seriously which he took for his current job. He is also an attorney and presumably took a similar oath for that.
One has to wonder if the above is true, why the good soldier had no qualms about the fulfillment of his oath under the previous administration. I smell ideologue here-not patriot-and wish him no success, as we embark upon a rough sea internationally.