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“SAXBE FIX” USED BY BOTH CLINTONS TO AVOID CONSTITUTIONAL HURDLE
by Sharon Rondeau
(Feb. 14, 2010) — A lawsuit has been filed with the Supreme Court of the United States claiming that Hillary Clinton is ineligible to serve as Secretary of State.
Judicial Watch, which represents the plaintiff, filed an appeal on December 31, 2009, following a hearing by a three-judge panel of the U.S. District Court in Washington, DC which dismissed it due to the plaintiff’s “lack of standing.” The suit was originally filed on January 29, 2009 on behalf of Lt. Col. David Rodearmel (Ret.), who is now serving in the Foreign Service, which is part of the Department of State.
Rodearmel took an oath to “support and defend and bear true faith and allegiance to the U.S. Constitution” and is questioning whether or not Clinton has violated Article I, Section 6, paragraph 2, also known as the “Emoluments Clause” of the Constitution, by assuming the position of Secretary of State.
The clause reads: “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.”
According to Judicial Watch’s website, in December 2008, after Hillary Clinton had been nominated for Secretary of State, Congress made use of the “Saxbe fix” to avoid the Emoluments stipulation by lowering the Secretary of State’s salary to its January 1, 2007 level.
On December 11, 2008, Politics Daily reported, “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.”
Congress had utilized this “fix” before in previous administrations, both Republican and Democrat. In 1973, President Richard Nixon nominated William B. Saxbe for attorney general, although Saxbe had voted to increase the salary of that post while serving in the Senate in 1969. The Washington Post reports that at that time, ten Senate Democrats voted against the “fix,” declaring it unconstitutional. Sen. Robert C. Byrd (D-WV) “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.””
A December 4, 2008 article by CNSNews.com reported that Sen. Byrd was exploring whether or not Hillary Clinton was constitutionally eligible to serve as Secretary of State. At the time, “Constitutional scholars…agreed this issue is a valid one in the confirmation process of Clinton, who President-elect Barack Obama announced Monday would be his nominee for secretary of state…However, they disagreed on whether the matter can be resolved by simply reducing the pay for the job back to the pre-2008 level.”
According to The Heritage Foundation, in 1937, “the Senate approved the appointment of Hugo L. Black to the Supreme Court even though Congress had passed legislation significantly augmenting the pensions of Supreme Court justices during the Senate term in which Black served,” and a lawsuit challenging Black’s appointment was dismissed for lack of standing.
Politisite reported that President Bill Clinton used the fix so that Sen. Lloyd Bentsen, D-TX, could become treasury secretary. During President Ronald Reagan’s presidency, Senator Orrin Hatch was under consideration for Associate Justice on the Supreme Court, but the Office of Legal Opinion deemed him ineligible to serve because salaries for Associate Justices had been raised while Hatch was a sitting senator. President Reagan then nominated Robert Bork, who was not approved by Congress.
In 1995, John F. O’Connor’s legal treatise written for the Hofstra Law Review entitled “The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution,” states that “the Saxbe fix is inconsistent with both the language and the purpose of the Emoluments Clause.”
The current Congress implemented the “fix” a second time so that Ken Salazar, Senator from Colorado, could become Secretary of the Interior under Obama.
The plaintiff in the case against Clinton, David Rodearmel, wrote a personal statement which was included in the lawsuit filed by Judicial Watch, which begins: “For almost a century, administrations of both parties have used various legal maneuvers to avoid complying with the Constitution’s ‘Emoluments Clause’ (Art. 1, Sec. 6, Clause 2). This has become a more frequent practice in recent years. Such ‘work-arounds’ do not satisfy the plain text of the Constitution.”
The University of Chicago Law School Faculty Blog weighed in on the possibility of a challenge to Clinton’s appointment while also obliquely mentioning the controversy surrounding Obama’s election to the presidency: “There is, to be sure, the problem of standing; there is no cabinet member in-waiting to challenge the appointment and it might be that the Constitution can simply be violated if those constitutional officers who should abide by it (The President, those who confirm the nominee) decline to do so. On such grounds, a President might be elected, and might serve, despite a failure to be of age or to be a citizen. There are some good reasons for standing doctrine, but for those of us who do not live in the world of constitutional law scholarship, those good reasons do not have much to do with this likely failure of law to keep up with apparent violations of it.”
It is interesting to note that the law passed which lowered the compensation of Secretary of State to create the “fix” for Hillary Clinton to assume the office, Public Law 110-455, also allowed for challenges to the appointment on constitutional grounds. The text of the law can be found here.