Hillary To Head State: Is It Constitutional?

By Drew Zahn
© 2008 WorldNetDaily

n 1973, President Richard Nixon was able to appoint Sen. William B. Saxbe as his Attorney General, despite the fact the Saxbe was part of a Senate that nearly doubled Cabinet pay 1969, by convincing Congress to reduce Saxbe's pay as Attorney General to its pre-1969 levels.

The sidestep, since known as the "Saxbe fix," was also used by President Taft in 1909, President Carter and President George H. W. Bush, who actually implemented the fix to enable Sen. Lloyd Bentsen to serve as treasury secretary

The so-called "fix," however, has been criticized as perhaps honoring the spirit of the law, but nonetheless violating a clearly written statute of the Constitution.

In the 1973 case, the Washington Post reports, 10 senators, all Democrats, voted against Saxbe's appointment on constitutional grounds. Sen. Robert C. Byrd, D-W.Va., the only one of them who remains in the Senate, said at the time that the Constitution was explicit and "we should not delude the American people into thinking a way can be found around the constitutional obstacle."

"The content of the rule here is broader than its purpose," Professor Michael Stokes Paulsen, a constitutional law expert at St. Thomas School of Law in Minneapolis, told MSNBC. "And the rule is the rule; the purpose is not the rule."

"A 'fix' can rescind the salary," Paulsen added, "but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls."

And at least one administration, that of President Ronald Reagan, chose to avoid the controversy of the Saxbe fix by striking Sen. Orrin Hatch from a short list of potential Supreme Court nominees because of Hatch's ineligibility under Article 1, Section 6.

While questions remain about the constitutionality of the Saxbe fix in Clinton's case, some bloggers – such as Professor Eugene Volokh of the UCLA School of Law and Jack M. Balkin, professor of constitutional law at Yale – have pointed out that during her term of office, Hillary did not actually vote on an increase of Cabinet salaries. A 2008 executive order from President Bush created the increase, based on cost of living adjustments, leading some to argue that appointing Clinton doesn't violate the spirit of the law in Article 1, Section 6, at all.

Andrew Malcolm, whose blog is featured by the Los Angeles Times, however, believes the Constitution needs to be strictly followed.

"We're not lawyers. But we do speak English," Malcolm writes. "And to our eyes that constitutional clause doesn't say anything about getting around the provision by reducing or not benefiting from the increase of said 'Emoluments.'"

Malcolm continues, "It flat-out prohibits taking the civil office if the pay has been increased during the would-be appointee's elected term. Period. Which it has."