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Senate prepares legal remedy to clear Hillary

     Washington: The US Senate is reported to have come up with a legal remedy that will allow it to circumvent the Constitution and clear the nomination of Senator Hillary Clinton as the country's next Secretary of State. According to Politico, the Democrats are readying legislation that could be acted on as soon as next week to pave the way for Clinton's confirmation in Barack Obama's Cabinet. Clinton's office says this issue has been resolved numerous times in the past and that all parties were aware of it in advance of her being announced this week as Obama's choice for the nation's top diplomat. The Ineligibility Clause of the Constitution (article 1, section 6, clause 2) 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 increased during such time. This provision does not prohibit the appointment of Senator Clinton as Secretary of State. Historical practice and Department of Justice interpretation have in fact permitted appointments of members of Congress to such offices so long as their salaries are based on the levels set before the relevant term of office.

    This longstanding practice-which dates back at least 100 years to President Taft's appointment of Philander Knox to be Secretary of State-is often referred to as the "Saxbe Fix," referring to the arrangement whereby Congress set the salary for President Nixon's nominee for Attorney General William Saxbe so it would reflect the salary level in place before his congressional term of office. Other cabinet officials appointed under such an arrangement include Secretary of State Edmund Muskie and Secretary of the Treasury Lloyd Bentsen. As constitutional scholar Ron Rotunda has explained, as a matter of historical practice, Congress has interpreted the ineligibility imposed by this clause as nonabsolute; that is, a Senator (or Representative) could be appointed to an office although the emoluments had been increased during the term for which the Senator (or Representative) had been elected to Congress, if the increase were rescinded. This interpretation fully satisfies the concerns motivating this constitutional restriction, by removing any risk of self-dealing. · So long as Congress agrees to set the salary for the Secretary of State at levels set before the start of Senator Clinton's current term--which began on January 4, 2007--her appointment will satisfy the Constitution as it has long been interpreted and applied.
- Dec 4, 2008

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