Your Guide to the Hillary Clinton Constitutional Crisis


As you may have read in Press Clips’ “Is Hillary ineligible for her new job? Of course she is,” some people are saying that Hillary Clinton is Constitutionally prevented from becoming Secretary of State, to which post Barack Obama this week appointed her, because the Emoluments Clause of the U.S. Constitution forbids members of Congress from taking any “civil Office” for which the salary has been raised since they came to the Hill. (Secretaries of State got a raise this year.)

In the cesspool of corruption that is Washington, this may seem a quaint safeguard against the sort of penny-ante scam that was long ago made obsolete by holding companies, shell corporations, and lobbying firms. And it may seem like something that can be easily handled with a little legislation.

It does, and it is. But the fuss persists and, followers of rightwing discourse will not be surprised to learn, it has nothing to do with respect for the Founding Fathers.

When the Clause pained the posteriors of previous Presidents, they’d get Congress to do a “Saxbe fix” — that is, lower the salary so that the new officer wouldn’t get the raise. And that seems to be the plan now.

But hard-liners insist that doesn’t make a difference — the fact that the raise occurred makes any serving member of Congress appointed before the raise ineligible, even if they don’t get the money. As it was put by University of St. Thomas professor Michael Stokes Paulsen — widely quoted by these types, as you can see by googling his quote — “A ‘fix’ can rescind the salary, but it cannot repeal historical events.”

Some conservatives — and you may be sure they’re the only ones taking this seriously — try to add heft to their argument by invoking the sacred memory of Reagan, who “chose to avoid the controversy of the Saxbe fix,” says World Net Daily, when he graciously declined to nominate Orrin Hatch to the Supreme Court. (Ed Brayton has a different interpretation of events: “Reagan did not want to appoint Hatch to the post, but he didn’t want to offend him either… It was just a way for them to say, ‘Gosh Orrin, we’d love to name you Chief Justice, but that darn Constitution just won’t let us.'”)

Nobody expects the Senate to block Clinton, but in the permanent campaign to which these political obsessives devote their lives, any hook, however tiny, is a winner if you can hang some slurs on it. Judicial Watch President Tom Fitton’s press release, for instance, ends, “And aside from the constitutional issue, Hillary Clinton’s long track record of corruption makes her a terrible choice to serve as the nation’s top diplomat.” Many commenters to the related Wall Street Journal blog post are similarly tangential: “BONNIE AND CLYDE BACK BY THE BACK DOOR. CHANGE YOU CAN COUNT ON,” “The laws of the United States do not apply if your last name is Clinton,” “the clintons believe they are the kennedys, in that laws don’t apply to them,” etc. And of course there are the usual references to “Hitlery.”

Whether it’s their style to snarl outright, or take a wounded, gentlemen-of-the-jury tone (“It is sad to see President-elect Obama… show such a lack of respect for the Constitution”), or just breezily assert that it’s “a slam-dunk if you actually believe the Constitution’s language,” none of these guys are really worried about disturbing the eternal slumber of Madison and Jefferson. Their crisis is not Constitutional but Clintonian. Any conjunction of a Clinton and a controversy will stimulate their thirst for vengeance so powerful that it can drive them to almost any lengths to slake it — even (as we saw during Bill Clinton’s impeachment and we are seeing now) to Constitutional scholarship.

This article from the Village Voice Archive was posted on December 3, 2008


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