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There is a question of whether of not Hillary Clinton can legally serve as Secretary of State. Not surprisingly, it's a Constitutional question, and involves the Three Branches of Government.
Here's the Clif Notes Version: Article 1, Section 6:
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.A case can be made that Hillary Clinton cannot be appointed as Secretary of State because while she was a Senator, the Senate passed legislation this term which raised the salary of Cabinet Officers.
This has happened twice before: Nixon appointed William Saxbe as Attorney General. The solution was called the "Saxbe Fix", where they just lowered the salary back down. It didn't please all the Democrats at the time:
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."The second time, it involved appointing Lloyd Bentsen as Secretary of the Treasury.
So, there may be a fix. HOWEVER, these are not the 1960's nor the 1990's. Now, we have an internet and a lot more transparency. Therefore, whatever happens will occur in full view of the people. There is no possibility of "burying" the item in a newspaper.
Ambinder wrote (prior to the nomination):
The question is whether this would be an issue at confirmation - if Clinton is nominated to the post - and who would raise it. Senators traditionally grant their colleagues some deference and it could be considered politics at its worst if Republicans try to block her nomination with this argument. But senators may be loathe to vote for something scholars tell them is unconstitutional.There are two questions here: the legal and the political, separated as much as may be practicable.
The legal issue is something that will need to be debated, and could conceivably end up in front of SCOTUS, left to thread the needle between the other two branches.
On the political side, it's even more convoluted. To wit:
If the salary is reduced, and therefore the only person making less of a salary than that of Cabinet peers is a woman, how well does that play? Especially in a year given to cries of "sexism". This could be raised since the two other people to circumvent the provision were both men.
If it is legally deemed that she cannot occupy the office of Secretary of State, and that the prior appointments were invalid, what does that do to the relationship of Hillary Clinton's support base and the Democratic Party?
What of Robert Byrd? Will he back off his Constitutional objections of 30 years ago? It may not matter since this may likely be his last term, and therefore could avoid any constituent wrath. (His term is up in 2013, and he'd be running for re-election at the age of 94. His health is not good.)
One of the battle cries over the last eight years has been the evisceration of the U.S. Constitution by the Bush administration. What sort of political message would be sent by working around part of Article 1?
If Hillary Clinton does not become Secretary of State, and ergo cannot hold any other appointed position, does she go back to the Senate? Go back to the Senate and launch a run for the Governorship of New York? Leave elective office to work with her husband?