Hillary can't be Secretary of State?

[TWDuke]

@Marley23

I don’t understand the reasoning behind that rule and I still think it should be possible to work around it.

Mr. MADISON renewed his motion yesterday made & waved to render the members of the 1st. branch “ineligible during their term of service, & for one year after- to such offices only as should be established, or the emoluments thereof, augmented by the Legislature of the U. States during the time of their being members.” He supposed that the unnecessary creation of offices, and increase of salaries, were the evils most experienced, & that if the door was shut agst. them: it might properly be left open for the appointt. of members to other offices as an encouragemt. to the Legislative service. …

Mr. BUTLER. The amendt. does not go far eno’ & wd. be easily evaded [heh] …

Mr. MADISON had been led to this motion as a middle ground between an eligibility in all cases, and an absolute disqualification. He admitted the probable abuses of an eligibility of the members, to offices, particularly within the gift of the Legislature He had witnessed the partiality of such bodies to their own members, as had been remarked of the Virginia assembly by his colleague [ Col. Mason]. He appealed however to him, in turn to vouch another fact not less notorious in Virginia, that the backwardness of the best citizens to engage in the Legislative service gave but too great success to unfit characters. The question was not to be viewed on one side only. The advantages & disadvantages on both ought to be fairly compared. The objects to be aimed at were to fill all offices with the fittest characters, & to draw the wisest & most worthy citizens into the Legislative service. If on one hand, public bodies were partial to their own members; on the other they were as apt to be misled by taking characters on report, or the authority of patrons and dependents. All who had been concerned in the appointment of strangers on those recommendations must be sensible of this truth. Nor wd. the partialities of such Bodies be obviated by disqualifying their own members. Candidates for office would hover round the seat of Govt. or be found among the residents there, and practise all the means of courting the favor of the members. A great proportion of the appointments made by the States were evidently brought about in this way. In the general Govt. the evil must be still greater, the characters of distant states, being much less known throughout the U. States than those of the distant parts of the same State. The elections by Congress had generally turned on men living at the seat of the fedl Govt. or in its neighbourhood.-As to the next object, the impulse to the Legislative service, was evinced by experience to be in general too feeble with those best qualified for it. This inconveniency wd. also be more felt in the Natl. Govt. than in the State Govts. as the sacrifices reqd. from the distant members, wd. be much greater, and the pecuniary provisions, probably, more disproportiate. It wd. therefore be impolitic to add fresh objections to the Legislative service by an absolute disqualification of its members. The point in question was whether this would be an objection with the most capable citizens. Arguing from experience he concluded that it would. The Legislature of Virga. would probably have been without many of its best members, if in that situation, they had been ineligible to Congs. to the Govt. & other honorable offices of the State.

Source: http://www.teachingamericanhistory.org/convention/debates/0623.html

Hopefully that makes everything crystal clear.

Actually, one point that comes across strongly in that reading is that two of Madison’s concerns in raising the motion were (1) that federal offices be filled by the best available candidates (2) and that the best-qualified people not be discouraged from serving in the legislature. An overly strict application of this rule does not serve either of these purposes. In fact, this whole debate could be a textbook example of the folly of strict textualism when the founders’ intent is clear.

[Liberal]

Ya think.

[TWDuke]

Yup.

But Democrats in the past have inveighed against this sleight-of-hand. In the Saxbe case, 10 senators, all Democrats, voted against the ploy 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.”

10 Senators, which would be fewer than 1 out of 10 Democratic Senators at the time, and exactly one out of those 10 is still in office and could be held to his statement of three decades ago on the principle that no one ever changes his mind (by which principal he should also still be a proud member of the KKK.)

[John_Mace]

@TWDuke

Source: http://www.teachingamericanhistory.org/convention/debates/0623.html

Hopefully that makes everything crystal clear.

Actually, one point that comes across strongly in that reading is that two of Madison’s concerns in raising the motion were (1) that federal offices be filled by the best available candidates (2) and that the best-qualified people not be discouraged from serving in the legislature. An overly strict application of this rule does not serve either of these purposes. In fact, this whole debate could be a textbook example of the folly of strict textualism when the founders’ intent is clear.

What did all the other signers of the constitution think about about the subject? If we knew that, then you’d have a point. But as it is, all we have is what they wrote in the text.

[BrightNShiny]

@John_Mace

I don’t think anyone in this thread is calling it a “crisis”. It’s a clear violation of the plain text of the constitution (AFAICT), but is easily correctable. We should correct the situation instead of allowing a violation to stand. That is all.

There is no existing violation that is currently “standing,” since Hillary has neither been nominated, nor confirmed for SoS yet.

[Liberal]

They should have written it plainly, thus:

Two hundred one score and two years hence, there shall be no appointment made to the office of Secretary of State of one Hillary Rodham Clinton if she shall have served in the US Senate at a time when the emoluments of her pending office shall have been increased and if the president appointing her shall have more than one-sixth negro blood, not including blood of slaves, and if her husband shall have been a prior president and shall have been impeached.The way it stands, it’s just too vague.

[Little_Nemo]

If the relevant law is 5 U.S.C. 5312 5318, the law in question appears to have been passed in November 2003, during her previous term.

That law appears to address locality pay. If I understand it correctly, the relevant law here is 5 U.S.C. 5303(a) which addresses cost-of-living increases. The law was enacted in 2001. It directed the President to make an annual adjustment to some salaries in accordance with increases in the cost-of-living. President Bush accordingly issued an executive order in 2008 which raised the Secretary of State’s salary.

[Captain_Carrot]

@TWDuke

Yup.

10 Senators, which would be fewer than 1 out of 10 Democratic Senators at the time, and exactly one out of those 10 is still in office and could be held to his statement of three decades ago on the principle that no one ever changes his mind (by which principal he should also still be a proud member of the KKK.)

The rest of this I can get behind, but how is 10 Senators of any party less than 1/10th of the Senate?

[John_Mace]

@Liberal

They should have written it plainly, thus:

Two hundred one score and two years hence, there shall be no appointment made to the office of Secretary of State of one Hillary Rodham Clinton if she shall have served in the US Senate at a time when the emoluments of her pending office shall have been increased and if the president appointing her shall have more than one-sixth negro blood, not including blood of slaves, and if her husband shall have been a prior president and shall have been impeached.The way it stands, it’s just too vague.

It’s only vague if you want it to be vague. There is nothing vague about the word “no”.

[TWDuke]

@John_Mace

What did all the other signers of the constitution think about about the subject?

You can see what some of them thought by following that link I posted. I’m sure you could find other related material if you tried.

Under the strictest reading of the rule, we may be in a situation in which no sitting congressperson can ever be named to federal office, which is clearly not what was intended.

But as it is, all we have is what they wrote in the text.

That’s only true if you start with that assumption. The truth is we have much more to go on then that. The constitution did not generate itself spontaneously in a vacuum.

@Captain_Carrot

The rest of this I can get behind, but how is 10 Senators of any party less than 1/10th of the Senate?

Math is hard.

[John_Mace]

@TWDuke

You can see what some of them thought by following that link I posted. I’m sure you could find other related material if you tried.

Well, the burden is on you to provide that, if you think finding out what the founders thought is important.

Under the strictest reading of the rule, we may be in a situation in which no sitting congressperson can ever be named to federal office, which is clearly not what was intended.

Nope. And if they clearly intended otherwise, why not say so?

That’s only true if you start with that assumption. The truth is we have much more to go on then that. The constitution did not generate itself spontaneously in a vacuum.

No, because we simply cannot know what all (or even most) the people thought who voted on the original constitution. That means all the members of Congress as well as the state legislators.

[Kent_Clark]

I just wanted to check in and say I’m enjoying this debate.

Carry on.

[Little_Nemo]

I noticed that nobody has posted the article under discussion:

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.

I don’t think anyone’s disputing that the office of Secretary of State is a civil office or that its emoluments were increased during Senator Clinton’s current term. The question is how absolute the ban is. My contention is that past precedent has been Senators can serve in the office is they renounce the emoluments that were added during their term; in such a case the emoluments have therefore not increased as far as that individual is concerned. I listed five Senators above who have done this. Can anyone present a reason why Clinton should be treated differently than these past Senators?

[pseudotriton_ruber_ruber]

It is a pretty stupidly worded piece of legislation, though, if we need to find legal ways around it almost immediately.

[tomndebb]

@Little_Nemo

I noticed that nobody has posted the article under discussion:

Well, not since the OP, anyway.

[Johnny_L.A]

‘… or the emoluments whereof shall have been increased…’

Technically, even if the salary is lowered can a case be made that she is ineligible because the emoluments had been increased in the past? That is, rescinding the increase doesn’t change that there ‘had been’ an increase.

[Kent_Clark]

I suppose in some weird, 18th century grammatical construct, the phrase “shall have been” could be construed to be present tense. All Congress has to do is retract the pay raise before Hillary’s nomination is approved, which means the emolument wouldn’t be increased in the present and everything would be okey-dokey.

It would also give her a chance to say “I voted for the raise before I voted against it” – a construct that worked so well for President Kerrey.

[ComeToTheDarkSideWeHaveCookies]

Update…

Yet the move does not satisfy the concerns of Judicial Watch, a conservative watchdog group that raised the Emoluments Clause issue last week. From the group’s standpoint, the mere fact that the salary was raised during Mrs. Clinton’s term makes her ineligible to run until her term expires in 2013, regardless of Wednesday’s Congressional action to bring it back down.

“We consider it an end-run around the Constitution,” said Tom Fitton, the president of the group, which has been a longtime foe of the Clintons. “If our lawyers determine that we are able to file a legal challenge, I suspect that we would.”

So let me get this straight…

The purpose of the Emoluments Clause is to basically prevent an elected official from helping to pad a salary for a position during their term, and then end up enjoying that higher salary by somehow ending up up in that same position. So Congress reduces the salary of Sec. of State to avoid running afoul of this Clause, and it is considered an “end run around the Constitution”? The intent of of the Clause was honored. 'nuff said.

[gonzomax]

She is getting the old salary. Condi got paid almost 5 grand a year more.

[Marley23]

Judicial Watch is insane. I’d take that about as seriously as the Berg and Donofrio challenges of Obama’s election.