Is Clinton Ineligible to Join the Cabinet?

By Peter Baker

Updated | 11:30 p.m. CHICAGO – Senate Democrats were working Tuesday to put together legislation making it possible for Senator Hillary Rodham Clinton to become secretary of state despite a constitutional clause that some critics argue should bar her from joining the cabinet.

The issue may seem esoteric but it generated attention Tuesday among legal scholars and bloggers arguing over whether it would be unconstitutional for Mrs. Clinton to serve as President-elect Barack Obama’s secretary of state because the salary for her new office was increased while she served in the Senate.

Judicial Watch, a watchdog group that made a name for itself investigating the Clinton administration in the 1990s, raised the matter Tuesday with a statement asserting that Mrs. Clinton was ineligible to become secretary of state because of the so-called “Emoluments Clause” of the Constitution. By the end of the day, Senator Harry M. Reid of Nevada, the Democratic majority leader, was consulting with Republican colleagues in hopes of putting together a bill to address the issue.

The issue stems from Article I, Section 6, of the Constitution, which says: “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.” Emoluments refers to compensation.

After Mrs. Clinton’s last Senate election in 2006, the salary for secretary of state and other cabinet positions was increased to $191,300 from $186,600. In the past, Congress has gotten around this by passing a resolution cutting the salary for the office at stake back to what it was before the nominee’s most recent election.

This became known as the “Saxbe fix,” after it was used to facilitate President Richard M. Nixon’s appointment of Senator William Saxbe of Ohio as attorney general. It happened most recently 16 years ago when incoming President Bill Clinton made Senator Lloyd Bentsen of Texas his treasury secretary.

“It’s been dealt with each and every time,” said Jim Manley, spokesman for Mr. Reid. “We’re confident it can be dealt with this time.” Mr. Manley said it was unclear whether the measure could be passed during a lame-duck session next week. “We’re trying to work on this as quickly as possible,” he said.

Judicial Watch, and some legal scholars, argued that the Saxbe fix is insufficient because the constitutional clause says a senator is ineligible if the salary was raised, which it was in this case, even if it is subsequently cut again.

“There’s no getting around the Constitution’s Ineligibility Clause, so Hillary Clinton is prohibited from serving in the Cabinet until at least 2013, when her current term expires,” said Tom Fitton, president of Judicial Watch. “Barack Obama should select someone who is eligible for the position of secretary of state and save the country from a constitutional battle over Hillary Clinton’s confirmation.”

Philippe Reines, a spokesman for Mrs. Clinton, said she and Mr. Obama had anticipated the issue and were prepared to resolve it. “This is a Harvard Law grad nominating a Yale Law grad here, so all parties involved have been cognizant of this issue from the outset,” he said. “But putting frivolous lawsuits by fringe groups aside, this issue has been resolved many times over the past century involving both Democratic and Republican appointments and we’re confident it will be here too.”