This happened last week, but I was too swamped to blog about it. Here's the Complaint (in Rodearmel v. Clinton), and the press release:
Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has filed a lawsuit against newly sworn-in Secretary of State Hillary Rodham Clinton on behalf of U.S. Foreign Service Officer and State Department employee David C. Rodearmel, (Rodearmel v. Clinton, et al., (D. District of Columbia)). The lawsuit maintains that Mrs. Clinton is constitutionally ineligible to serve as Secretary of State and that Mr. Rodearmel cannot be forced to serve under the former U.S. Senator, as it would violate the oath he took as a Foreign Service Officer in 1991 to "support and defend" and "bear true faith and allegiance" to the Constitution of the United States.
Under the "Emoluments" or "Ineligibility" clause of the U.S. Constitution, no member of Congress can be appointed to a civilian position within the U.S. government if the "emoluments" of the position, such as the salary or benefits paid to whoever occupies the office, increased during the term for which the Senator or Representative was elected.
Specifically, article I, section 6 of the U.S. Constitution 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." The text of the provision is an absolute prohibition and does not allow for any exceptions.
According to Judicial Watch's lawsuit, the "emoluments" of the office of U.S. Secretary of State increased three times during Mrs. Clinton's most recent U.S. Senate term. That term, which began on January 4, 2007, does not expire until January 2013, regardless of Mrs. Clinton's recent resignation. The lawsuit notes that Congress attempted to evade this clear constitutional prohibition with a so-called "Saxbe fix" last month, reducing the Secretary of State's salary to the level in effect on January 1, 2007. This maneuver, first used in the Taft Administration, has been more frequently used in recent years by both parties, allowing notably Republican Senator William Saxbe to become U.S. Attorney General in 1973 and Democratic Senator Lloyd Bentsen to become Treasury Secretary in 1993. A similar "fix" has been enacted for Senator Ken Salazar to join the Obama Cabinet as Secretary of the Interior.
Judicial Watch's lawsuit, however, points out that the legislation "does not and cannot change the historical fact that the 'compensation and other emoluments' of the office of the U.S. Secretary of State increased during Defendant Clinton's tenure in the U.S. Senate ...." The U.S. District Court for the District of Columbia is required to give expedited consideration to the lawsuit.
"This historic legal challenge should remind politicians of both parties that the U.S. Constitution is not to be trifled with," said Judicial Watch President Tom Fitton. "Mrs. Clinton is constitutionally ineligible to serve as the U.S. Secretary of State until at least 2013, when her second term in the U.S. Senate expires. We hope the courts will put a stop to these end runs around the Constitution and affirm the rule of law."
For our earlier posts on the subject, see here; as I noted there, I'm tentatively inclined to think that the Clinton appointment doesn't violate the Emoluments Clause, but I thought I'd link to the arguments of those who take the contrary view (as I also had earlier, quoting Prof. Michael Stokes Paulsen).
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:
I am generally pleased by this lawsuit because it tends to make the textualists look rather silly.
I take it that he would say that following her orders forces him to violate his oath, since she was (allegedly) appointed in violation of the Emoluments Clause. But even if that's so, (a) shouldn't he have to point to an order of hers that he's following (rather than to the mere fact of her appointment) to establish an injury in fact, and (b) would there not also be a problem of redressability, since any subsequent and properly appointed Sec. of State will issue the same order, since he or she takes directives from the President?
Is that right? Seems like that should read "requested to give expedited consideration," but if the district court really is so required, I'd be curious to know why.
"This Court should reverse" is about as frisky as I get.
But others' mileage may vary.
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.
So, the statute does in fact require the district court to expedite review. I still wonder whether the plaintiff "has been aggrieved by an action of the Secretary of State," though.
From Section 1(b)(2) of the law [PL 110-455]: "Any claim challenging the constitutionality of the appointment...shall be heard and determined by a panel of three judges...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."
With that being said: I sure as hell would never tell a Court what it is "required" to do. Even with a Congressional directive backing me up, I'd still ask nicely.
Evidence:
1. The current standing argument is, umm, a stretch.
2. Rodearmel is hoping to get fired, which will give him a redressable injury from a specific act of the secretary.
3. In fact, he seems to consider himself fired already. See the constructive discharge argument at para. 19. Yes, when you conclude your boss is a fraud, you don't have to go to work anymore--indeed, honor demands that you stay home!
4. The clincher: why else would the complaint contain Rodearmel's résumé at para. 6? He's getting a jump on the job hunt. Notice also the values statement at para. 8.
Note that Judicial Watch, in the quoted passage, totally elides this point, by stating that the emoluments "increased." That is a correct statement, but the use of a simple aorist or preterit tense does not reflect the Constitution. It is true that the emoluments "increased," but it is not true that the emoluments "have been increased."
Maybe this limits standing even further. But I think it's more likely that, just as they'll write this one off for its absurdity, they'll squint hard to find support for standing as soon as some less superficial case comes along.
I'm certainly not classically educated.
It would seem that the loss he experiences reflects his relationship with his own conscience -- his own sense of self-esteem and sense of himself as an honest person who does the right thing and abides by his word. It's not clear to me that such a loss is judicially redressable. One could argue that the sense of anguish the plaintiff feels is caused, not by the United States or Mrs. Clinton, but by the plaintiff's own conscience. Disputes between people and their consciences are not easily resolvable by courts.
If plaintiff's logic held, it would would seem that every time a person did an action which caused someone else to break his word, that person would have a grievance.
If I were an investment banker who solemnly took a sworn oath to buy a jet airplane this, and the United States cause my employer to fail to give me an expected bonus which rendered me unable to purchase it, would I have a grievance against the United States for causing me to break my oath?
What's the difference between the two cases? It's true that one is a public oath and the other purely personal. But how does a personal interpretation of a public oath to mean something different from what everyone else involved believes create a practical result that is any different from a purely personal oath?
Take your pick. They're all good reasons why such a lawsuit hasn't got a snowball's chance.
Seems to me the language can mean either "was increased at any point" and "has increased on net" so the purpose of the restriction needs to be investigated to choose the correct interpretation.
This having been said there is a somewhat plausible argument that any increase, even one that has been reversed, bars that person from the office. One might contend the vagueness above would seem to allow only two interpratations: either eligeability is lost if there is a net increases or it is lost if there is any increase.
Now assume that the prior congress raised the salaries of many government officials to astronomical rates and at the start of the term the new congress cut those salaries back to more reasonable levels. Even though there would have been no net increase appointing a representative who worked tirelessly that term to boost the salary back to a higher level on the expectation they would be appointed to that job would seem to be in direct conflict with the obvious intent of the clause. Thus, if you insist on only these two interpretations this would argue that the more restrictive one be accepted.
Of course I wouldn't be so strictly textual and I would want the court to interpret the clause to allow appointment only at the minimal salary enacted during their tenure in congress.
You know, you're absolutely right. If they had meant to use a past tense, they could and would have just done so. The Saxbe fix fails to address "were encreased" (and "should have been encreased") but successfully fixes "shall have been encreased."
If it says "increased over the last year", I enter 0. But if it says "increased during the last year", I enter 1. If it says "has been increased during the last year", I enter 0.
It's a lawyerly nitpick, and perhaps unfair for the IRS to demand of the general taxpayer, but I think it's reasonable to expect a more nuanced understanding of the language from someone who was both elected to Congress and then appointed to a federal post... and from the judges who would make the call.
Anyhow, we now have Senator Gregg as well.
Legislators enacting self-serving legislation has been unseemly since ancient times. The relevant parts of the Sixth couldn't be clearer. If you are a federal legislator, you can't hold a federal office for which you controlled the emoluments.
The Saxby fix is actually a doubly-cynical response. First, it's mere existence demonstrates that what can be given can be taken away, but if it can be taken away, IT CAN JUST AS EASILY GE GIVEN BACK.
Second, the fact that someone actually engaged in the necessary sophistry to try and defeat the prohibition says that we, as a republic, are tired of and done with liberty. Our legislature has enacted, and our courts upheld an act that creates a literal aristocracy. The question is: why isn't this a class action by all the employees of State?
Another pathetic angle of this case and the response to this is what it says about what our Federal officers have become. It was, at one point, a matter of "fortunes, and. . . sacred honor." I have to ask, how would we have the officers at State act? If the incumbent were a traitor, or advocated the overthrow of the government, or were a murderer or embezzler, (or perhaps, a tax scofflaw. . .), would we be pleased or proud of them if they shrugged their shoulders, mumbled something about "archaic Oath" and "pay my mortgage", and carried out the orders given to them? Nuremberg, anyone?
The fact that the case has to be brought in the first place is outrageous. The fact that we all just languidly watch and giggle is distressing in the extreme. . . or ought to be.
wm13 and GabrielMcCall: Very interesting thought -- but as a grammatical matter, isn't a present participle required to extend the past perfect tense to create the subsequent effect? In other words, could "shall have been encreased" be a past perfect passive tense, akin to a prohibition like: No Senator or Representative shall be appointed to a civil office if (s)he shall have been contacted by a fundraiser for the President in the preceding election.
"Godwin's Law and the Emoluments clause."
Best note title ever?
Check.
That is an interesting question. How far can someone go in defending the Constitution?
http://www.msnbc.msn.com/id/28179393/
updated 1:35 p.m. ET, Thurs., Dec. 11, 2008
WASHINGTON - Sen. Hillary Rodham Clinton would make about $4,700 less as secretary of state than her predecessor, Condoleezza Rice.
Congress late Wednesday lowered the salary for the nation's top diplomat to keep Clinton's nomination from running afoul of the Constitution.
An obscure section on compensation for public officials, the Emoluments Clause, says that no member of Congress can be appointed to a government post if that job's pay was increased during the lawmaker's current term.
In other words, Clinton, D-N.Y., might have been ineligible to serve in the post because she was serving in Congress when Rice's salary was raised to its current level of $191,300. So late Wednesday, the House and Senate quietly rolled the secretary of state's salary back to $186,600, its level in January 2007 when Clinton began her second Senate term.
Even at the lower rate, Clinton would still get a raise over her Senate salary.
Senators now make $169,300 and are expected to receive a raise to $174,000 next year.
President-elect Barack Obama nominated Clinton to the post earlier this month. She is expected to keep her Senate seat pending confirmation by the Senate next year. Republicans and Democrats have said they expect no serious objections to her confirmation.
I understand that the original intent was to indicate the entire length of the original position (e.g. 6 years under normal circumstances). But with the 'fuzziness' of many phrases being nicked so often, I see this one as being vulnerable to the questioning of the hard definitions of 'Time' in relation to 'elected'.
She'll stay.
I do wish the Court would rule the opposite though.
What a waste of time. Within a few weeks, someone at State will have rock-solid standing.
The clause says nothing about changing the pay and then changing it back. It's concerned only with whether the position received a boost or not.
Incidentally, Senator Salazar was mentioned as another case. Doesn't this same Clause also apply to Senator Gregg (Commerce)?
Also, has there ever been a case of a Representative appointed to Executive office during a term, after some raise in salaries? Representatives Lahood and Solis have resigned in mid-term to take their present Cabinet seats, but only two weeks or so into the term, so I don't suppose there was any salary action.
However, back in May 1969, Donald Rumsfeld resigned from the House to become Director of the Office of Economic Opportunity. In September 2004, Porter Goss resigned from the House to become Director of the CIA. Did anyone check to see if there was an applicable salary action?
Going much further back, Simon Cameron resigned from the Senate to become Lincoln's first Secretary of War; there was no EC issue raised that I ever heard of, so one may guess there had been no salary action in the previous four years of his term. (Chase and Seward's terms expired in 1861, so they were not affected.)
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