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Constitutional Crisis Averted

I’ve been involved in a discussion lately over whether Hillary Clinton can serve as Secretary of State because the Constitution  forbids a sitting member of Congress from taking a cabinet post if that position saw an increase in pay.

The guys over at Politico have written about too…

Hillary Clinton’s nomination of Secretary of State has resurrected an obscure constitutional clause that prohibits members of Congress from being appointed to positions that saw a wage increase during that lawmaker’s tenure. 

But Democrats are readying legislation that could be acted on as soon as next week to pave the way for the New York Democrat’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. For those of you who haven’t been following this arcane constitutional challenge, “emoluments” is the operative constitutional word here, and it means payments arising from holding an office.

A source close to the transition has provided a series of legal points, which could serve as the basis of a legislative proposal in the Senate. Here’s what the source sent The Crypt: 

· 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.

Crisis averted.  Next.

 

  • Taxpayer 834512

    Aren’t “Constitutional crisis’” now devoid of concern? The President-elect has chosen not to produce whatever the heck a “real birth certificate” is? I don’t know that this is or isn’t a real crisis or what constitutes a real crisis versus a pseudo-crisis. I do know that if there’s nothing to hide, then produce the document(s) and let’s move on.

  • MissouriDemocrat

    Taxpayer834512 and everyone else. Let’s get on with the business of recovery for the nation and stop the petty bickering on Birth Certificates please. I read all this crap daily which is only here it seems “blogland” and not of any concern to anyone in power like a Supreme Court Justice. No one seems to mention this birth certificate anywhere else.
    The republican right wing can’t stand to lose an election and be in a position to bully everyone around. So we get a birth certificate flap. Some people will never stop.

  • KC

    It has beome become very clear to me. Team Obama has no regard for the Constitution or the American people. A group of lawyers dodging every loophole to cease power in this country. I find it interesting Obama has appointed Senators Joe Biden, who called him inexperienced to be president, Hillary Clinton, who raised the birth certificate issue during the primary and stated he was ineligible to be president as a natural born citizen, and Gov. Richardson, who commanded the Hispanic votes, each were former presidential candidates who lost to him in democrat primary elections. Each have standing to have him disqualified as president.

    http://countusout.wordpress.com/
    BE THERE!!! SUPREME COURT STEPS FRIDAY, DEC. 5th – 8 a.m.! Be A Part of via eaxxdotcom, http://www.usc ounties.com
    SUPREME COURT STEPS FRIDAY DEC 5 8:00AM
    Be part of the solution.
    SAVE THE CONSTITUITION
    there are a ton of us are going to DC on Friday.
    Even if Obama has a Hawaii Birth Certificate
    the fact is Obama was born with Dual
    Citizenship Britain and USA.
    He is not a “natural born citizen” as the founding fathers
    would have interpreted the definition.
    Supreme Court Justice Thomas thinks
    this deserves a conference.
    See docket below.
    EVENT:
    8:00 AM ALL DAY
    SUPREME COURT STEPS
    http://www.wmata.com/metrorail/systemmap.cfm – DC Metro Map Link.
    Blue or Orange METRO Capitol South Station
    North about 520blocks – Capitol Building is on the left
    Supreme Court is on the right
    Just past the Library of Congress.
    scotusmarch@yahoo.com
    Be part of the solution.
    SAVE THE CONSTITUITION
    CASE FROM:
    http://origin.www.supremecourtus.gov/docket/08a407.htm
    No. 08A407
    Title:
    Leo C. Donofrio, Applicant
    v.
    Nina Mitchell Wells, New Jersey Secretary of State
    Docketed:
    Lower Ct: Supreme Court of New Jersey
    Case Nos.: (AM-0153-08T2 at the New Jersey Appellate Division without a docket number)…..

  • KC

    “seize power”

  • Shorebreak

    Abdul – if you believe in the legitimacy of this “solution”, are you willing to put your money where your mouth is and try putting it into practice in real life? Here’s what you should do to show your readers and listeners that the solution is legal and effective:
    .
    Drop your car insurance policy. If you get pulled over for a violation and get cited with failure to present proof of insurance, call up your insurance provider, order insurance, and then present it in court as evidence that you’re in compliance. See how far that gets you. Better yet – drop the insurance and then rear end someone. Pick up a new policy and try to use that one to cover your losses.
    .
    You’ll soon find out that we’re being served a fat portion of smoke and mirrors in these justifications that allow Presidents to get away with breaking the law. So I would agree that a crisis has been averted. It’s been explained in a manner that the majoity of the population won’t object to, because it sounds good in a 15 second sound bite.
    .
    But that doesn’t make it legal. Not now, and not in the past. Obama is violating the Constitution before being sworn in.

  • varangianguard

    Newsflash! Alcoa, Inc. (NYSE: AA) has published a press release dated this date regarding an anticipated shortage of aluminum foil products in the United States.
    .
    It is suggested that large scale users of this material begin to stockpile reserves to guard against running out of hat material over the next 16 quarters.

  • Taxpayer 834512

    I’m a pretty inept far right-winger as I despise George W. Bush, haven’t voted for Burton in the last couple of elections, and espouse “tree-hugging”. I’d love to move-on & suggest our President-elect cough-up the documents and we can start.

  • John Howard

    So much for all men (women) being created equal. Most of us don’t have the luxury of changing laws to suit our whims.

    Emoluments must only be for those of us who don’t sit in the big house and play by a special, privileged set of rules.

  • Shorebreak

    John H, you are 100% correct. Anyone who thinks that this situation is resolved needs to follow the instructions that I provided in post #5. If you know you wouldn’t have a legal leg to stand on without having the ability to change the law, you know that Obama has no legal basis either. He is clearly violating the Constitution if the appointment is approved – and so is the complicit Congress if they go through with it.
    .
    And to Vangiangaurd – I think I’m gonna buy stock in Alcoa. It won’t be long before the tinfoil hat wearers outweigh the detractors. As events leading to a global system are rapidly increasing and unfolding – in full public view – it won’t be long until only the blind and the delusional refuse to admit what is happening:
    .
    http://www.youtube.com/watch?v=3snkmyYiWME

  • Think Again

    Taxpayer, the black helicopters are landing in your front yard in about an hour.

    Also, there’s an excellent article in this issue of Indpls. Monthly on the John Birch Society and its assorted nutcases. Read it and weep.

  • Taxpayer 834512

    Maybe. But, all it takes for them to take off again is to share his documentation with the American people. Win, lose, or draw.

  • John Howard

    I eagerly await GW’s list of last-minute pardonees to be published. It should be (a) lengthy and (b) infuriating.

  • http://none Mauri

    We don’t have to go to Washington to observe disdain for the constitution. It is happening right here in Indiana and none of the officials who have sworn to uphold our constitution will do a thing. I cite article 2 section 9 of our state constitution which affects several legislators one among them namely Rep. Pat Bauer.
    Section 9. No person holding a lucrative office or appointment under the United States or under this State is eligible to a seat in the General Assembly; and no person may hold more than one lucrative office at the same time, except as expressly permitted in this Constitution. Offices in the militia to which there is attached no annual salary shall not be deemed lucrative.
    (History: As Amended November 6, 1984).
    I suggest that the governor cleanout these many scofflaws immediately.

  • KC

    This, from The Wall Street Journal’s MarketWatch Web site:

    Mr. Obama’s Eligibility to be Aired Monday at the National Press Club
    FROM: WSJ MarketWatch

    QUEENSBURY, N.Y., Dec 04, 2008 — On Monday, December 8, 2008, at 1:30 pm, the We The People Foundation will conduct a press conference at the National Press Club in Washington D.C.

    The licensed attorneys who initiated lawsuits in PA (Philip Berg), NJ (Leo Donofrio) and CA (Orly Taitz), challenging Mr. Obama’s legal eligibility to hold the Office of President of the United States, will briefly summarize the facts, legal arguments and status of their cases. They will answer questions from the press.

    Prior to the start of the conference, at 10 am, the Supreme Court of the United States is expected to announce whether it will consider applications from these attorneys who have asked the Court to delay the proceedings of the Electoral College pending a determination of the underlying constitutional question – the meaning of the “natural born citizen” clause of Article II of the Constitution and its application to Mr. Obama.

    Robert Schulz will briefly discuss Mr. Obama’s response to the publication of his Open Letter in the Chicago Tribune on Monday and Wednesday of this week. For the reasons given in the Open Letter, Schulz asked Mr. Obama to: (1) immediately authorize Hawaiian officials to provide a team of forensic scientists access to his original (“vault”)20birth certificate and (2) arrange for the delivery of other documents needed to conclusively establish Obama’s citizenship status. Mr. Schulz will answer questions from the press.

    “Under our Constitution, no one is eligible to assume the Office of the President unless he or she is a ‘natural born citizen,’” said Bob Schulz, Chairman of the Foundation. “To date, Mr. Obama has refused all requests to release his original birth certificate or other documents that would definitively establish his citizenship status and thus his constitutional eligibility.”

    The Open Letter to Mr. Obama summarizes the evidence against Mr. Obama and the adverse consequences that would befall the Nation should he assume the Office of the President as a usurper.

    “Should the state members of the Electoral College cast their votes for Mr. Obama in the face of such overwhelming evidence, and without verification of Mr. Obama’s eligibility, they would be committing treason to the Constitution,” said Schulz.

  • Robert-NW Side

    “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.”
    -
    Here we have it, folks! “Historical PRACTICE” and DoJ “interpretation” are all it takes to crap on our Constitution.
    -
    Clearly, it doesn’t matter if the past PRACTICE was in accordance with the language, spirit and INTENT of the Constitution. And, anyone listening to Abdul knows of his disdain for our Constitution. This is an ailment that appears to infect most lawyers and politicians.
    -
    Why do lawyers and politicians always look for ways to GET AROUND Constitutions — State and federal? What happened to their freaking OATHS to those Constitutions?
    -
    All is well, as long as The Messiah gets his way.

  • Inquiring Mind

    Is this the reason James Carvel, a democrat strategist, suggested in September “if Obama is attacked by mainstream media,[meaning if the truth is told now about him], there will be riots [black folks]in the streets.” I asked the question back then, and I am asking it now, who will start the riot if Barack Obama is found to be ineligible to serve as the first black-skinned president under the U.S. Constitution? Natural born and not naturalized citizen. Is he Kenyan born, a British subject? Indonesian adopted Barry Soreoto? Later, When did he become an American Barack H. Obama?

    If this is true, the racist Democrat Party has used this election and the black vote to seize control of the government after they screwed it up, and dumped the cleanup on the shoulders of an unqualified dark-skinned candidate with a extremely tainted past. American deserve to know the truth about their president. What’s new?

  • KC

    A reporter on the Today Show this morning, finally, [a MSM, NBC] has acknowledged the legal challenges to Obama’s citizenship before the U.S. Supreme Court. Mainly defining the term, “natural born citizen”, and whether or not he is eligible to be president. He stated we will have to wait until Monday for the Court’s decision

    The pressure is on for valid proof to put this constitutional controversy to rest.

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