From Prof. Michael Stokes Paulsen, author of Is Lloyd Bentsen Unconstitutional?, 46 Stanford L. Rev. 907 (1994) (some paragraph breaks added, some glitches fixed with Prof. Paulsen's advance permission):
Thanks for alerting me to this fascinating (and fun) issue! I've played in this particular sandbox before [as to Lloyd Bentsen], and am amused to see it return in slightly different form.
So, "Is Hillary Clinton Unconstitutional?" In a word, Yes -- or, to be more precise, a Secretary of State Hillary Clinton would be unconstitutional.
The Emoluments Clause of Article I, section 6 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." As I understand it, President Bush's executive order from earlier this year "encreased" the "Emoluments" (salary) of the office of Secretary of State. Last I checked, Hillary Clinton was an elected Senator from New York at the time. Were she to be appointed to the civil Office of Secretary of State, she would be being appointed to an office for which "the Emoluments whereof shall have been encreased" during the time for which she was elected to serve as Senator. The plain language of the Emoluments Clause would thus appear to bar her appointment ... if the Constitution is taken seriously (which it more than occasionally isn't on these matters, of course).
Are there any legitimate escape hatches to this constitutional bar? Let's consider them quickly. First, does the fact that the emoluments of the office were increased by executive order, pursuant to a general authorizing statute, take the case out of the Emoluments Clause rule? Plainly not. The clause is written in the delightfully ambiguous passive voice that we always discourage in our law students. "shall have been encreased ... by whom, exactly?!" The clause does not limit the application of its rule to direct statutory enactments.
In the world in which legislation may be accomplished by delegation of general quasi-lawmaking authority to executive branch officials, there is no difference in legal principle between a direct legislative enactment and an executive order pursuant to specific legislative authorization. If pay increases may be accomplished, legally, by executive order, then those increases in emoluments fit within Article I, section 6's rule. If those increases occurred during the time for which Hillary Clinton was elected to the U.S. Senate, they disqualify her, regardless of when the general statutory authorization for such increases was enacted.
But wait! Wasn't the (probable) purpose of the Emoluments Clause to prevent congressional self-dealing in the form of creation of offices (or increasing their emoluments) and hoping to profit thereby by being appointed to such office? And isn't that purpose plainly inapplicable here? Perhaps. But the content of the rule here is broader than its purpose. And the rule is the rule; the purpose is not the rule.
As I wrote in something of a sequel to Lloyd, if purposes were taken as rules, and if the meaning of texts "evolve" over time, then "thirty-five years of age" does not mean "thirty-five years of age" but stands instead for an evolving principle of maturity. In 1996, this would have meant that the lawful President of the United States was Strom Thurmond, not Bill Clinton. Michael Stokes Paulsen, Is Bill Clinton Unconstitutional? The Case for President Strom Thurmond, 13 Const. Comment. 217 (1996). So too, the fact that the Emoluments Clause catches in its snare the (possibly) blameless (for this at least) Hillary Clinton does not mean that its constitutional command can be ignored with impunity.
Then there's the infamous "Saxbe Fix" precedent, which I discuss in Lloyd. Couldn't Congress pass a repealing statute, or President Bush (or even President Obama) rescind the executive order, selectively, as to Hillary and make everybody happy? Nope: The clause forbids the appointment of someone to an office the emoluments whereof "shall have been encreased." A "fix" can rescind the salary, but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls.
Unless one views the Constitution's rules as rules that may be dispensed with when inconvenient; or as not really stating rules at all (but "standards" or "principles" to be viewed at more-convenient levels of generality); or as not applicable where a lawsuit might not be brought; or as not applicable to Democratic administrations, then the plain linguistic meaning of this chunk of constitutional text forbids the appointment of Hillary Clinton as Secretary of State. I wouldn't bet on this actually preventing the appointment, however. It didn't stop Lloyd Bentsen from becoming Secretary of State. But it does make an interesting first test of how serious Barack Obama will be about taking the Constitution's actual words seriously. We know he thinks the Constitution should be viewed as authorizing judicial redistribution of wealth. But we don't know what he thinks about provisions of the Constitution that do not need to be invented, but are actually there in the document.
There is one last chance for Hillary. The Emoluments Clause provides that its rule applies to any senator or representative, "during the Time for which he was elected." Perhaps the rule of the Emoluments Clause does not apply to female U.S. Senators. It's an out-there argument, of course (Hillary and I both went to Yale Law School). But I think I would prefer even this (unpersuasive) pronoun pounce to the Saxbe Fix, or to ignoring the text of the Constitution entirely.
My views are somewhat different (and less certain), and I discuss them briefly at the end of the earlier post; but I thought that I would use this post to pass along Prof. Paulsen's views.
Related Posts (on one page):
- The Resultative Perfect
- New Justice Department Opinion on the Ineligibility Clause (Sometimes Also Called the Emoluments Clause):
- Judicial Watch Sues Over Hillary Clinton and the Emoluments Clause:
- The Saxbe Fix Is In,
- Why Isn't Vice-President-Elect Biden Affected by the Emoluments Clause?
- More on Hillary Clinton and the Emoluments Clause:
- Hillary Clinton and the Emoluments Clause: