Senate Addresses Constitutionality of Hillary Clinton With Saxbe Fix

Last night, with little attention paid, the Senate approved a resolution to reduce the Secretary of State's pay to pre-increase levels. This move, referred to as a Saxbe fix, will be used to get around the fact that Hillary is constitutionally prohibited from serving in the post.

As I've discussed in this space before, the issue arises as a result of the 'emoluments' clause, otherwise known as Article 1 Section 6 Clause 2, which states:

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.

There is no question that this will be considered to clear the way for Clinton in the Senate. In many other instances, including during her husband's administration, the Saxbe fix has been deemed sufficient. However, it is not without its detractors. When the man the fix is named for, Saxbe, was up for Attorney General under Nixon, ten Senate Democrats, including Robert Byrd of West Virginia, strongly objected. Byrd in particular condemned the maneuver in no uncertain terms:

"We should not delude the American people into thinking a way can be found around the constitutional obstacle."

I contacted Senator Byrd's office but they couldn't say which way the Senator voted, nor did he have any official position on the issue. It was a voice vote, so there was no official record available. At the least it's clear he isn't leading a charge of opposition.

The Saxbe fix has not always been considered constitutional. Reagan's administration declined to use it on constitutional grounds. Much virtual ink has been spilled at law blogs on topic, most notably at The Volokh Conspiracy. Although the fix is generally accepted, it seems accurate to say it doesn't actually fix the problem in legal terms. The clause prohibits her from serving due to the pay increase being passed. Taking away the pay doesn't change what actually occurred. In the strictest sense, the Saxbe fix doesn't fix that.

Of course, it seems clear from the wording that the intent is to avoid an elected official using their office to inflate the pay for a position they are about to be appointed to, so if the pay is then reduced, it would seem the intent of the clause has been satisfied. I'm no lawyer, though, so take that for what its worth. Certainly there is an argument to suggest we oughtn't try to parse the intent, but rather follow the constitution as it is written. This gives us a clear guideline for governance, not a series of debates about the meaning of 'is'.

The House will likely pass a similar resolution soon, and Hillary Clinton will likely be confirmed with little issue. The question will always remain, though, as to whether the new constitutional law professor President cheated the constitution in his own political interests. Robert Byrd of years past would think so, as would Reagan. It's certainly not the ideal way to start a new job, not for Hillary or Obama.