Thread: Hillary To Head State: Is It Constitutional?

The Constitution again. That old important document that stands in the way of a Hillary appointment. The founders had a reason.


CHANGING OF THE GUARD
Hillary to head State: Is it constitutional?
Founding Fathers included clause that prevents Clinton appointment--------------------------------------------------------------------------------
Posted: November 30, 2008
6:03 pm Eastern


By Drew Zahn
© 2008 WorldNetDaily


Barack Obama, it has been reported, intends to announce Sen. Hillary Clinton as his choice for secretary of state, an appointment America's Founding Fathers forbade in the U.S. Constitution.

The constitutional quandary arises from a clause that forbids members of the Senate from being appointed to civil office, such as the secretary of state, if the "emoluments," or salary and benefits, of the office were increased during the senator's term.

The second clause of Article 1, Section 6, of the Constitution reads, "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."

During Hillary Clinton's current term in the Senate, the salary for Cabinet officers was increased from $186,600 to $191,300. Since the salary is scheduled to again be raised in January 2009, not only Hillary Clinton, but all sitting Senate members could be considered constitutionally ineligible to serve in Obama's Cabinet.

But wait! Is the entire Barack Obama administration unconstitutional? Where's the proof he was born in the U.S. and thus a "natural-born American" as required by Article 2, Section 1 of the Constitution? If you still want to see it, sign WND's petition demanding the release of his birth certificate.

James Madison's notes on the debates that formed the Constitution explain the reason for the clause. Madison himself argued against "the evils" of corrupt governments where legislators created salaried positions – or increased the salary of positions – and then secured appointments to the cushy jobs they just created. Others agreed that such tactics were evident in Colonial and British government, and they wrote Article 1, Section 6 to prevent the practice.

Presidents in the past, however, have found a sometimes controversial way to skirt the clause and nonetheless fill their cabinet with constitutionally ineligible legislators.

(Story continues below)




In 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 for President Clinton's incoming administration.

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."







http://www.worldnetdaily.com/index.php? ... geId=82374

The democrats dont care about the U.S. Constitution. Its obvious in their slection of an ineligible presidential candidate. Bush never cared either and thought the U.S. Constitution was "just a gdamn piece of paper".

The plot thickens...

Originally Posted by butterbean

The democrats dont care about the U.S. Constitution. Its obvious in their slection of an ineligible presidential candidate. Bush never cared either and thought the U.S. Constitution was "just a gdamn piece of paper".

Yep, it's nothing more than a barrier to the elected ones that to them seems to be something that needs to be ripped apart so they really "rule" instead of representing.

We have a constitution?

December 3, 2008, 1:15 PM



Is Hillary Ineligible For Cabinet?

Posted by Brian Montopoli| 87




[b]A conservative watchdog group called Judicial Watch is arguing that thanks to a Constitutional clause known as the “Emoluments Clause,â€

Originally Posted by apropos

We have a constitution?

We did!

This just came out from Tom Fitton of Judicial Watch:

Dear Friend,

Of course the United States Constitution matters. However, it seems that Hillary Clinton and the Washington, D.C. insiders don't seem to think so because despite being ineligible under the U.S. Constitution, Hillary Clinton is being nominated for Secretary of State!

You see, the Ineligibility Clause (Article 1, Section 6) of the Constitution provides that "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 unfortunately for Hillary, a January 2008 Executive Order signed by President Bush (during Hillary Clinton's current Senate term) increased the salary for Secretary of State, thereby rendering Senator Clinton ineligible for the position.

This provision was designed by our Founding Fathers to protect against corruption. (President Ronald Reagan reportedly did not appoint Senator Orin Hatch to the Supreme Court because of this provision.)

There's no getting around the Constitution's Ineligibility Clause. Hillary Clinton is prohibited from serving in the Cabinet until at least 2013, when her current term expires.

And now Hillary is attacking us. Her spokesman smeared us by calling us a "fringe group." Why? For pointing out that the U.S. Constitution – the supreme law of the land – should be followed by President-elect Barack Obama and Senator Hillary Clinton.

Harry Reid and Nancy Pelosi are now trying to do an end run around the Constitution by reducing the salary of Secretary of State to previous levels, but their charade won't work. Nothing can change the fact that the salary had been increased while Senator Clinton served in Congress. Simply put, the Constitution does not provide for a legislative remedy for the Ineligibility Clause.

Every American ought to be disturbed that Obama, Clinton and their friends in Congress appear willing to cast the Constitution aside when it gets in the way of their political plans.

Aside from the constitutional issue, Hillary Clinton's long track record of corruption makes her a terrible choice to serve as the nation's top diplomat.

To illustrate just one: Has any other Secretary of State nominee been the subject of a grand jury criminal investigation?

Hillary Clinton and husband Bill are ethically challenged and have consistently abused their public office for personal and political gain. Hillary and Bill (not to mention their siblings) are scandals waiting to happen. Hillary Clinton has neither the temperament nor ethics to be in such a sensitive office.

Byrd’s Office Explores Constitutionality of Sen. Clinton Serving as Secretary of State

Thursday, December 04, 2008

By Fred Lucas, Staff Writer

(CNSNews.com) - The Senate’s senior member and staunchest constitutional advocate on the Democratic side of the aisle, Robert Byrd of West Virginia, is exploring whether Sen. Hillary Clinton (D-N.Y.) is eligible to become secretary of state in the Obama administration.

The question of eligibility arises from Article 1, Section 6 of the Constitution. It says that no member of Congress can be appointed to a civil office that benefited from a salary increase during the time that House or Senate member served. On Jan. 4, 2008, President Bush signed an executive order raising the salaries of cabinet secretaries from $186,600 to $191,300, a cost of living adjustment.

Constitutional scholars who spoke to CNSNews.com agreed this issue is a valid one in the confirmation process of Clinton, who President-elect Barack Obama announced Monday would be his nominee for secretary of state.

However, they disagreed on whether the matter can be resolved by simply reducing the pay for the job back to the pre-2008 level.

While there is legal precedent to allow members of Congress to accept these jobs – which came to be known as the “Saxbe fixâ€

Isn't Obama suppose to be a Constitutional Lawyer???