Monday, December 1, 2008
Barack Obama Picks Hillary Clinton To Be Secretary Of State; Rush Limbaugh Delighted, But Questions Already Arising As To Hillary's Eligibility
On Monday November 30th, 2008, President-elect Barack Obama announced Sen. Hillary Clinton as his pick for secretary of state, calling her an "American of tremendous stature who will have my complete confidence". Full stories published in the Deseret News, the Salt Lake Tribune, and on CNN.
"Hillary's appointment is a sign to friend and foe of the seriousness of my commitment to renew American diplomacy and restore our alliances," Obama said at a news conference in Chicago, Illinois. "I have no doubt that Hillary Clinton is the right person to lead our State Department and to work with me in tackling this ambitious foreign policy agenda."
In addition, Obama also confirmed that he is keeping Defense Secretary Robert Gates in his current post, and also named retired Marine Gen. Jim Jones as his National Security Adviser, Eric Holder as Attorney General, Arizona Gov. Janet Napolitano as Homeland Security secretary and Susan Rice as ambassador to the United Nations. Other prospective Cabinet nominees yet to be formally announced include former U.S. Senator Tom Daschle (D-SD) for Health & Human Services and Democratic New Mexico Governor Bill Richardson for Commerce.
Clinton said leaving the Senate would be difficult for her, but said she believes that the best way for her to continue to serve the country is by joining Obama's administration. "Mr. President-elect, I am proud to join you on what will be a difficult and exciting adventure in this new century," she said at the news conference. Bill Clinton, who was not present, issued a statement expressing his support for his wife.
Even Rush Limbaugh jumped on the bandwagon, characterizing the move as a "brilliant stroke". Limbaugh believes it would prevent Hillary from challenging Obama for the Presidential nomination in 2012.
New York Gov. David Paterson said he is consulting with people from all over the state in order to appoint the best possible candidate to replace her in the Senate. However, according to a separate CNN story, Gov. Paterson would prefer a replacement who is either from upstate New York, or else a woman or Hispanic candidate from any part of the state.
Whomever Paterson picks would serve for two years, before a special election would be held in November 2010 to decide who fills out the last two years of Clinton's term. Specific contenders named include at least eight separate members of New York's delegation in the House of Representatives, as well as New York State Attorney General Andrew Cuomo, Buffalo Mayor Byron Brown, Bronx Borough President Adolfo Carrion, Nassau County Executive Thomas Suozzi, Caroline Kennedy, and her cousin, Robert Kennedy Junior.
A possible wild-card selection might actually be Bill Clinton himself. In an op-ed published on November 26th by the Washington Post, journalist and author Karl Meyer and his wife urged Governor Patterson to send Bill Clinton to the Senate. If that happened, Clinton would become only the second former president to go from the White House to Capitol Hill. President John Quincy Adams was the first, being elected to the U.S. House in 1830, just two years after losing his Presidential re-election bid in 1828. Update: According to a Dec. 2 CNN story, Bill Clinton has excluded himself from consideration.
However, the Washington Post is also the source of a dark lining in what otherwise appears to be a silver cloud. According to the Post's Law Blog, a handful of Constitutional Law scholars seem to feel that the Emoluments Clause of Article I, Sec. 6 disqualifies Hillary Clinton from serving as Secretary of State, an appointment that arrived a moment ago. (Click here for part of the discussion, courtesy of the Volokh Conspiracy.)
The Emoluments Clause 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 encreased during such time . . . . "
In other words (and generally speaking), if the emoluments (i.e., pay) for a certain cabinet position increase, all members of the Congress in office during that time of the increase shall be disqualified from later holding that position.
According to Volokh, the Emoluments Clause is in play because the Secretary of State got a cost-of-living adjustment in January of this year, at which time Hillary Clinton was a senator from New York. As John O’Connor, the author of an 1995 Hofstra Law Review article on the Emoluments Clause puts it: “[U]nder a straightforward application of the Emoluments Clause, Senator Clinton is ineligible for appointment as Secretary of State because the emoluments of that office “have been encreased” during Senator Clinton’s current Senate term, and this disability continues until the end of “the time for which [she] was elected, or until January 2013.
This has actually come up before. President Nixon was confronted with it when he wanted to appoint Senator William Saxbe to Attorney General. The solution derived, called the “Saxbe Fix,” reduced the pay level of the cabinet position back to where it was before the hike. Later, Lloyd Bentsen served as Treasury Secretary after the “Saxbe Fix” legislation reduced the salary of that office to its level immediately before Senator Bentsen’s Senate term had begun.
Analysis: This dispute does not rise to the level of the dispute over Barack Obama's eligibility for the Presidency. Obama has not produced a valid birth certificate showing that he is a born citizen of the United States. This is a serious matter.
In contrast, this controversy over Hillary Clinton's eligibility to be Secretary of State seems to be a mere technicality. Clinton's suitability should be determined in confirmation hearings solely by her philosophy and her track record, and not ride upon this obscure technicality. The "Saxbe Fix" will work just as well here.