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The Saxbe Fix Is In,

or at least getting there: The Congress passed a bill, S.J. Res. 46, lowering the Secretary of State's salary to its pre-raise levels, thus allowing Senator Hillary Clinton to be appointed to the office. I have no reason to doubt that the President will sign it. Here's the text of the bill:

JOINT RESOLUTION

Ensuring that the compensation and other emoluments attached to the office of Secretary of State are those which were in effect on January 1, 2007.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. COMPENSATION AND OTHER EMOLUMENTS ATTACHED TO THE OFFICE OF SECRETARY OF STATE.

(a) In General- The compensation and other emoluments attached to the office of Secretary of State shall be those in effect January 1, 2007, notwithstanding any increase in such compensation or emoluments after that date under any provision of law, or provision which has the force and effect of law, that is enacted or becomes effective during the period beginning at noon of January 3, 2007, and ending at noon of January 3, 2013.

(b) Civil Action and Appeal-

(1) JURISDICTION- Any person aggrieved by an action of the Secretary of State may bring a civil action in the United States District Court for the District of Columbia to contest the constitutionality of the appointment and continuance in office of the Secretary of State on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution. The United States District Court for the District of Columbia shall have exclusive jurisdiction over such a civil action, without regard to the sum or value of the matter in controversy.

(2) THREE JUDGE PANEL- Any claim challenging the constitutionality of the appointment and continuance in office of the Secretary of State on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution, in an action brought under paragraph (1) shall be heard and determined by a panel of three judges in accordance with section 2284 of title 28, United States Code. It shall be the duty of the district court to advance on the docket and to expedite the disposition of any matter brought under this subsection.

(3) APPEAL-

(A) DIRECT APPEAL TO SUPREME COURT- An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order upon the validity of the appointment and continuance in office of the Secretary of State under article I, section 6, clause 2, of the Constitution, entered in any action brought under this subsection. Any such appeal shall be taken by a notice of appeal filed within 20 days after such judgment, decree, or order is entered.

(B) JURISDICTION- The Supreme Court shall, if it has not previously ruled on the question presented by an appeal taken under subparagraph (A), accept jurisdiction over the appeal, advance the appeal on the docket, and expedite the appeal.

(c) Effective Date- This joint resolution shall take effect at 12:00 p.m. on January 20, 2009.

I should note that, though some people think the Saxbe fix doesn't make the appointment constitutional, the bulk of recent precedent from the Legislative and Executive Branches supports its constitutionality, and the text strikes me as ambiguous on the subject. For more on this issue, including the text of the underlying constitutional provision, a bit about historical precedent, the views of some scholars, and speculation on whether the constitutionality of the appointment can be challenged in court, see here.

Oren:
Well, at least we won't have to wait 2 years to get a definitive answer from the SC on the matter.
12.11.2008 2:46pm
J. Aldridge:
There is no evidence of bribery (via salary increases) so I think this is a dead matter.
12.11.2008 2:49pm
KilgoreTrout_XL (mail):
I think your earlier analogy was apt-

"If you're thinking about buying a computer, for instance, and you ask "Has the price of this computer been increased during the last year?," it seems to me quite possible that you would mean "Has it been increased so that it now costs more than it cost a year ago?"

I think this is the question, or I suppose the test, set forth here:

"...which shall have been created, or the Emoluments whereof shall have been encreased during such time"

The problem I have in concluding the discussion there is due to the excellent point made by John O'Connor in his discussion of the purpose of the clause (from his interpretation of the constitutional convention):

"If, contrary to the Emoluments Clause’s terms, Congress can restore its Members’ eligibility for appointment by reducing the office’s salary, the Emoluments Clause ceases to serve its function as providing a constitutional disincentive for regular increases in the salaries of federal offices."

So what trumps here? I would like to say that a plain reading of the clause, which I think allows the amendment, should control- but I don't know exactly when framer's intent should be taken into account, and what weight it should be given. Here it would bar an otherwise very reasonable interpretation of the passage. That seems problematic to me.
12.11.2008 3:08pm
BLC (mail):
I was struck by the fact it when though the senate unanimously. (not a peep) During Clinton’s nomination several senators challenge the “Saxbe fix” as an unconstitutional maneuver.

Senator Robert C. Byrd "we should not delude the American people into thinking a way can be found around the constitutional obstacle."
12.11.2008 3:11pm
Hadur:
I'd vote for this if I were a Republican Senator. Hillary can only cause strife in the Obama administration.
12.11.2008 3:17pm
A.W. (mail):
I welcome the thought of Hillary in the international spotlight the way i welcome a rash, but i have to say that this is all a pretty weenie-ish way to try to keep her out.

But part of me says the text is the text is the text, you know? I guess what I find befuddling is i don't understand their logic at all if they really intended to invalidate even the saxby fix.

Btw, i will note several things about this. Now I thought a joint resolution doesn't really have the force of law, especially given that the president doesn't sign it. Am I missing something?

Second, i notice that it expires before even one term is up. Curious...

btw, i also hear the republicans want bill on the stand to testify in the confirmation hearings. guys, don't go there. trust me. its a trap.
12.11.2008 3:19pm
John (mail):
who would be an aggrieved person?
12.11.2008 3:25pm
Tony Tutins (mail):
I still can't believe that the SoS did not get a pay raise while Daniel Webster (second time) or Cordell Hull were in the Senate.

While original meaning may trump original intent, a strict interpretation of the law no longer serves a purpose. Nowadays, people (Representatives) not even born when the Cabinet salary-raising mechanism was enacted could be subject to this prohibition. The practical effect of the clause would be to deny the incoming President the service of 2/3 of the Senate.
12.11.2008 3:30pm
CJColucci:
Does anyone want to weigh in on whether the Emoluments Clause is worth preserving? Maybe the problems some see it as creating are not worth ginning up the amendment machinery to solve them, but in all the threads commenting on this issue, I have seen next to nothing on whether the Emoluments Clause itself is wise or unwise.
12.11.2008 3:33pm
tjvm:
John: "who would be an aggrieved person?"

I wondered the same thing. Even if there aren't any senators or other public officials who want to raise the issue, there are surely some people who would be willing to take a shot at disqualifying Clinton. Unless the phrase "person aggrieved by an action of the Secretary of State" has some technical meaning that I'm unaware of, I'd think that Mrs. Clinton's more strident opponents would be able to find someone to file suit.
12.11.2008 3:33pm
ChrisIowa (mail):

Second, i notice that it expires before even one term is up. Curious...

It expires when Hillary's current Senate term ends.
12.11.2008 3:33pm
Feminknowledge:
The Saxbe Fix is not needed, as the Clause does not apply to Ms. Clinton or any other female appointee. The Clause 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 encreased during such time."
12.11.2008 3:34pm
LA Denizen:
@Feminknowlege:

Does that mean she can't be a Senator?


No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.


Same for just about every enumerated position on the Constitution. It seems there's an easier fix here...
12.11.2008 3:42pm
SeaDrive:
In this instance, both houses of Congress are implicitly giving the OK to Hillary. That's a lot of weight to run up against.
12.11.2008 3:44pm
Femiknowledge:
No, LA Denizen. The text clearly states that a person shall not be Senator if the age and citizen requirements have not been met. The State inhabitant requirement only uses the male pronoun.
12.11.2008 3:45pm
Lior:
Retroactively lowering the salary of the post would have been Constitutional (but not popular with Ms. Rice ...)
12.11.2008 3:47pm
Snaphappy:
Note that an adverse ruling on standing doesn't go to the Supreme Court.

"An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order upon the validity of the appointment and continuance in office of the Secretary of State under article I, section 6, clause 2, of the Constitution, entered in any action brought under this subsection. "
12.11.2008 3:56pm
Sarcastro (www):
Holy political question, batman!
12.11.2008 3:59pm
Houston Lawyer:
Is this meant to become law before Obama takes office?

Would it merit a pocket veto?

Obama should wait until after she quits her Senate seat and then veto it. You could sell tickets to that tantrum.
12.11.2008 4:11pm
NYNY (mail):
Anyone who has an issue with this legislation, is way too formalistic.
12.11.2008 4:18pm
Chris 24601 (mail) (www):
For any old high-school debate topicality fiends out there, it just occurred to me that one of my favorite arguments from the1989-1990 year--"a policy to decrease prison overcrowding in the United States"--would help the Saxbe fix argument. That year, I argued in most of my negative rounds, based on the 1987 unabridged Random House dictionary, that "decrease" required a sustained reduction, so just taking a few people out of prison, only to be quickly replaced by others, shouldn't count as a policy to "decrease" overcrowding. A similar argument could be made for "increased" in the Emoluments Clause: a temporary addition to emoluments doesn't count, as long as the emoluments go back down in time for the office-holding.
12.11.2008 4:28pm
Dave N (mail):
Houston Lawyer,

That would be a really bad move. Then she and her husband would be free to spend the next four years undermining President Obama at every turn.

This way, he has her on a leash and if she decides to revolt, she is just a "disgruntled former administration official."
12.11.2008 4:41pm
Snaphappy:
The best way to undermine Hillary would be to let her take office, then secretly work to have the appointment declared unconstitutional. Then she would be out of the Senate and out of the executive branch.
12.11.2008 4:51pm
BRM:
Has Sec. Rice already been paid her full salary? If not, doesn't this affect her as well? Is Clinton going to cut her a check for the difference?
12.11.2008 5:16pm
Oren:
An aggrieved person can be anyone fired under her authority.
12.11.2008 5:19pm
Jay:
"Unless the phrase "person aggrieved by an action of the Secretary of State" has some technical meaning that I'm unaware of, I'd think that Mrs. Clinton's more strident opponents would be able to find someone to file suit."

It means someone who is affected by some other action of the Secretary, which they would then have standing to challenge. Say, some group that is put on a terrorist watchlist, a fired foreign service officer, an exporter regulated in some way by the State Dept., etc. As part of their challenge to the "action" against them, they can argue that the SoS isn't constitutionally eligible to hold office. The statute tells courts how to handle such a claim.
12.11.2008 5:21pm
ShelbyC:
@Femiknowledge,

As I'm sure you know, the male pronoun can be used to refer to a person of indeterminate gender. Just because you don't like it don't mean it ain't so.
12.11.2008 5:26pm
Sarcastro (www):
Lets challenge something that's been done that way for a long time for obviously partisan reasons! This is a useful output of energy! There is no way we could look petty!
12.11.2008 5:27pm
Cornellian (mail):
So how much money will Clinton be out as a result of this preemptive pay cut and will she still be able to make the rent without it?
12.11.2008 5:46pm
BRM:
The plaintiff would have to be aggreived in a way that the Supreme Court has determined is valid enough to create a Case or Controversy, although FEC v. Akins suggests it need not be an injury unique to that plaintiff.
12.11.2008 5:54pm
DiverDan (mail):

Anyone who has an issue with this legislation, is way too formalistic.


Really -- I mean, just what use is a written constitution if you can't ignore it whenever it becomes inconvenient. While they were at it, why didn't the House and the Senate create a sneaky fix to avoid that troublesome 4th Amendment - like establishing an irrebuttable presumption of consent any time law enforcement personnel find incriminating evidence without the benefit of a warrant. There are literally dozens of Constitutional provisions that I find inconvenient -- like the 16th Amendment, just for an example. If Congress is free to ignore Article I, Section 6, Clause 2, then why shouldn't I be free to choose which parts of the Constitution I will ignore.
12.11.2008 5:59pm
BRM:
Anyone can ignore any provision of the Constitution if that person or entity is willing to face the consequences.
12.11.2008 6:02pm
Sarcastro (www):
DiverDan , ever heard of Justice White?

Me neither!
12.11.2008 6:04pm
BLC (mail):
I am going hold my breath until the ACLU rushes to the defense of the Constitution.
12.11.2008 6:14pm
KeithK (mail):

Has Sec. Rice already been paid her full salary? If not, doesn't this affect her as well?


No. See section (c), quoted in the original post.
12.11.2008 6:18pm
Alexia:

Anyone who has an issue with this legislation, is way too formalistic.


Yes, heavens forbid that a law actually mean what it says. It's just too much trouble to actually change laws that are outdated - best just to skirt them.
12.11.2008 6:28pm
BRM:
Hmm, I looked to see if there was an effective date and somehow missed it, despite reading all of section (b).
12.11.2008 6:39pm
Sarcastro (www):
Go Formalism! No more free expression, that's just some kind of functionalist crap! And those "Bright line rules" in criminal law are functionalist too! Don't get me started on Habeas!
12.11.2008 6:41pm
epeeist:
There's the text, but even for someone who's a literalist, isn't the original intention relevant as a guide to interpretation?

I don't think it too much of a stretch to interpret the emoluments clause as not forbidding appointment where the salary has been "rolled back" as I think that is a reasonable interpretation AND accords with common sense, and original intent, since to do otherwise would allow for an outgoing Congress/President to "blackball" any current Senators or re-elected Representatives from serving in the incoming administration.

Consider a situation in which there is say a Republican majority in Congress and a Republican President -- then along comes an election and suddently there is a Democratic President-elect who announces his intention to appoint to his cabinet several people who are currently members of Congress. To forestall this, the existing "lame-duck" Congress passes a bill, signed by the President, raising the salary of all cabinet positions by $1 per month effective immediately. All of a sudden no existing member of Congress can be appointed to any cabinet position under the new President because of something that the prior "lame-duck" Congress and President did. Unless you agree with the interpretation that "rolling back" the salary to what it was before can overcome it, in the sense that if the salary is what it was before, there has been no increase for purposes of the emoluments clause, even if for a brief period someone holding that appointed office would have, at the time, have had an increased salary.

Or for a position where an executive order would be sufficient to affect the salary (e.g. where the legislation relating to the salary provided for such?), an outgoing President could forestall any appointments of current members of Congress unilaterally simply by issuing an executive order raising the salary immediately by even a token amount.
12.11.2008 7:01pm
Dave N (mail):
Given the Supreme Court's desire to control its own docket, I am wondering how rare something like section (b)(3) is.

Are there any other provisions in the U.S. Code that require the Supreme Court to hear a case?
12.11.2008 7:42pm
David Schwartz (mail):
"If you're thinking about buying a computer, for instance, and you ask "Has the price of this computer been increased during the last year?," it seems to me quite possible that you would mean "Has it been increased so that it now costs more than it cost a year ago?"
What purpose does the word "been" serve in that construction?

Compare:

"Has the price been increased during the last year?"

"Has the price increased during the last year?"

The former implicitly means at any point during the last year. That's the purpose of the "has been increased" construction.
12.11.2008 7:49pm
Bama 1L:
What purpose does the word "been" serve in that construction?

Well it's not temporal as has been suggested. "Been" here indicates the sentence's voice. One is active and the other is passive.

"Has the fish been eaten?"
vs.
"Has the fish eaten?"

Of course in that pair, the difference is clear, because "to eat" is always transitive. "To increase" wobbles between transitive and reflexive intransitive; to be the subject of "to increase" is sometimes the same as to be the direct object:

"Profits increased." ("Profits" is the grammatical subject but is also what received the verb's action.")

and sometimes not:

"Management increased profits." ("Management" is the subject and performed the verb's action on "profits."

I believe that eighteenth-century writers were much more likely to think of "to increase" as a transitive verb calling for a separate subject and direct object. It also nicely parallels the preceding verb phrase built around "to create," which is always transitive.

If you wanted to go crazy with this, you could say that the use of "to be increased" rather than "to increase" means that there must be someone doing the increasing rather than the increase happening by itself. But I think that is chasing meaning where none exists.

(I continue to believe that "during the time for which he was elected" means time actually serving and that resignation ends that time.)
12.11.2008 9:09pm
Guest12345:
Without getting into the whole question, I'd suggest that if congress is going to get the benefit of an automatic pay raise allowing them to avoid having to answer to their constituents each year when they vote themselves a raise. Then in that case, they should have to live with the downside as well. I see no reason those arses should get it both ways.
12.11.2008 9:47pm
David Schwartz (mail):
Bama 1L
(I continue to believe that "during the time for which he was elected" means time actually serving and that resignation ends that time.)
Interesting that you think "during the time for which he was elected" excludes time for which he was elected. In any event, that won't help Hillary -- the salary was increased while she was serving.

In my opinion, the only thing that saves Hillary's eligibility as SoS is that an standard of living increase is not an actual increase. It simply prevents an actual decrease.

I simply find no plausible meaning for "shall have been" other than "at some time in the past". Once something "has been", it "has been".
12.11.2008 10:33pm
Conrad Bibby (mail):
Houston Lawyer: It won't be up Obama to sign this or veto it. Legislation passed by Congress but not signed by the Prez doesn't carry over to the next session. Bush either signs it, doesn't sign it, or vetoes it, all within 10 days. Presumably the WH is on board or they wouldn't have passed it.
12.11.2008 10:59pm
Jay:
Dave N--
Not many anymore, but most commonly various election law/Voting Rights Act disputes (which are likewise heard initially by 3-judge district courts).
12.11.2008 11:50pm
JohnO (mail):
Here's an analogous question:

If a federal judge is appointed when the annual salary is 100K, and then the salary is increased to 150K, and then the salary is brought back to 100K, has the judge's salary been diminished during his continunce in office (in violation of Article III)? I mean, when you net it out, the judge's salary hasn't diminished (at least not in nominal dollars), it's back exactly where it was at the time of appointment.

But the Supreme Court held that a judge's salary has "been diminished" in violation of Article III under such a set of facts because it was in fact reduced, even if the end result is no lower than the salary at the time of appointment. Booth v. United States, 291 U.S. 339, 352 (1934). The lesson was that the prohibition on diminution means that the salary can only move in one direction, regardless of net effect. Why wouldn't the same line of thought apply to a prohibition on increases in salaries?
12.12.2008 12:04am
Bama 1L:
David Schwartz, my reading (which a few other people reached back in the first series of VC posts on this issue) results in Art. I, § 6, cl. 2 being paraphrasable as follows:

No Senator or Representative shall, while actually serving since the last election, be appointed to any civil (as opposed to military) office created under the authority of the United States that was created or whose "emoluments" were increased while the Senator or Representative was actually serving since the last election.


It only prevents direct appointments from the legislature to new or newly-lucrative offices. That's all it does. To be eligible for appointment to one of those offices, you have to resign and then take the chance that you won't actually get the job.
12.12.2008 12:50am
CVMe:
>>Are there any other provisions in the U.S. Code that require the Supreme Court to hear a case?

I can't think of another one that is as explicit as this one. The Voting Rights Act and McCain-Feingold both had a similar 3-judge panel of the D.C. Circuit and direct appeal to the Supreme Court, but in those cases the litigants still have to convince the Court to "note probable jurisdiction." For instance, McCain Feingold says:

"An appeal may be taken directly to the Supreme Court of the United States from any final judgment, decree, or order issued by any court ruling on the constitutionality of any provision of this Act or amendment made by this Act."

I'm not aware of any other provision that requires "The Supreme Court shall, if it has not previously ruled on the question presented by an appeal taken under subparagraph (A), accept jurisdiction over the appeal, advance the appeal on the docket, and expedite the appeal."
12.12.2008 8:30am
ParatrooperJJ (mail):
The problem comes that if she is found ineligible after she has been in the job for let's say a year, then every act of the State Dept since that time would be invalid, would they not?
12.12.2008 8:47am
JohnO (mail):
ParatrooperJJ:

There are doctrines where the official acts of someone with appaent authority to act as a federal officer can remain valid even if it later turns out the person was ineligible for the post. I'm not sure what the standard is for this, or if it would apply in this type of situation.
12.12.2008 9:02am
Tony Tutins (mail):

There are doctrines where the official acts of someone with appaent authority to act as a federal officer can remain valid even if it later turns out the person was ineligible for the post.

On this subject: whatever happened to the Patent Office controversy? (BAPI decisions' validity in doubt because head of office lost Constitutional authority to appoint members after demotion to Undersecretary of Commerce, if I remember correctly.)
12.12.2008 11:02am
Der Hahn (mail):
IANAL or even a lecturere on con law but isn't the 'Saxbe fix' dubious at least in part because it focuses so narrowly on the present compensation of the office? If that is what the Framers had desired, they would have used that word (they used it in other circumstances). The 'Saxbe fix' seems to assume that it would be Consitutional for Congress and the President to create the 'US Inspector-General of Pennywhistles' with no compensation but a million dollar a year pension, then appoint any given legislator to the post effective at the end of their term. They serve one day and retire. There would be nothing wrong because a) the legislator didn't serve in the post during the time for which they were elected and b) the post had no 'Saxbe Emoluments'.
12.12.2008 12:04pm
dearieme:
There is no such thing as a "male pronoun" - it's a "masculine pronoun". "Masculine" refers to the gender of the pronoun, not the sex of the referrant. Small children used to understand the distinction.
12.12.2008 12:33pm
DiverDan (mail):
While the resolution quoted addresses the "compensation and other emoluments", it seems to be addressed primarily to the annual salary issue. Has anybody researched how other benefits will be effected - i.e., pension benefits, health insurance, etc. If Hillary, as SOS, is entitled to the Government Health Plan, isn't it true that she is only entitled to the level of benefits that would have been payable immediately prior to the beginning of her term, so that any scheduled payments to doctors, hospitals, pharmacies, etc. must be reduced to the scheduled payment amounts in effect on January 1, 2007 (or the date immediately prior to her swearing in)? Similarly, if any government Pension Plan is in effect for SOS, isn't it true that she can only accrue service credits for benefits at the rate in existence prior to her senate term -- no COLA adjustments at all for any period from January 1, 2007 through the end of her Senate term in 2012? What about per diems and reimbursements for things like travel costs - shouldn't those items also be limited to 2006 levels?
12.12.2008 12:50pm
Tony Tutins (mail):

shouldn't those items also be limited to 2006 levels?


Increase in the cost of an "in-kind" emolument like a tonsillectomy or a parking space does not leave the SoS any better off, so I would say maintaining the level of such emoluments does not constitute an increase.
12.12.2008 1:42pm
FredC:
"It only prevents direct appointments from the legislature to new or newly-lucrative offices. That's all it does. To be eligible for appointment to one of those offices, you have to resign and then take the chance that you won't actually get the job."

Intersting. I think Clinton is waiting to be confirmed to resign. She won't take the oath until after her resignation.
12.12.2008 1:44pm
David Schwartz (mail):
"It only prevents direct appointments from the legislature to new or newly-lucrative offices. That's all it does. To be eligible for appointment to one of those offices, you have to resign and then take the chance that you won't actually get the job."
That strikes me as an incredibly strange, though certainly not wholly implausible, view. In any event, so far as I know, nobody has ever acted on this view of the clause. Do you see anybody demanding that Hillary resign before she is appointed? I think if you filed a suit claiming that was required, even assuming you had standing, no judge would take the argument seriously.

(Though in fairness, that's largely because they've decided the emoluments clause can be ignored just like any amendments that also seem quaint.)
12.12.2008 2:19pm
MikeS (mail):
Simple fix: find a federal office whose pay hasn't been increased since 2006, appoint Hillary to that, and declare that the job has been retitled "Secretary of State" and its responsibilities now include overseeing the State Department. Leave the other "Secretary of State" job vacant. The only difference is that she won't be fourth in line for the presidency anymore.
12.12.2008 3:06pm
MikeS (mail):

who would be an aggrieved person?


I was next in line for the job, so me.
12.12.2008 3:07pm
MikeS (mail):
Conservative (n.)

1. A person who doesn't much care about habeas corpus or the Fourth Amendment, but would give his life for the Emoluments Clause.
12.12.2008 3:09pm
AlanDownunder (mail):
That's mean, MikeS. It's not all conservatives; it's only the Hillary haters.
12.13.2008 10:49pm
Hoosier:
ShelbyC:
@Femiknowledge,

As I'm sure you know, the male pronoun can be used to refer to a person of indeterminate gender.
-------------------------
(Don't say it, Hoosier. Don't say it, Hooiser. Don't say it . . . )
12.14.2008 4:10am

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