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.