Obama Ignores Constitutional Law Prohibiting Clinton As Secretary of State.

12/01/2008 04:14:00 AM

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unconstitutional-the-movie1Gee look, another instance where Obama ignoring Constitutional law, and thinks his word is golden, although the man has a law degree and formerly lectured on Constitutional law. 

One other thing to remember in reading all this is that Obama did sign an “American Freedom Pledge” during the Democratic presidential election, which encourages the restoration of basic Constitutional principles. [*KOFF KOFF*] On a side note, it took quite awhile for the Obama camp to agree to sign the pledge.

In this document it simply asked the candidates to affirm a statement that read:  “We are Americans, and in our America we do not torture, we do not imprison people without charge or legal remedy, we do not tap people’s phones and emails without a court order, and above all we do not give any President unchecked power. [NOTE:  Does this include in times of declared war?] I pledge to fight to protect and defend the Constitution from attack by any President.”  The only person who did not sign this document was Hillary Clinton.

Hillary Clinton can not legally be Secretary of State due to a clause in the Constitution under the “Emoluments Clause”, or salary or other compensation for employment.  In other words, Congress cant create new jobs or give raises to existing jobs, and then take those same jobs for themselves.  In “regular Joe” verbage, this means that Congress cannot take an appointment for which the pay has gone up during the time that person held office in Congress. 

Article I, Section 6, Clause 2

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.


By Executive Order dated January 4, 2008, President Bush ordered the salaries of Cabinet Secretaries to be raised from $186,000 to $191,300.  So thus, the pay for the Secretary of State increased this year.  This is the salary increase or the “emolument” increase .  Senator Clinton’s current term runs from 2007 to 2012, thus she is ineligible for taking said Secretary or State position until the end of her term.


Eugene Volokh, who is a Professor of Law at UCLA teaches free speech law, criminal law, religious freedom law, and church-state relations law.  Before coming to UCLA, he clerked for Justice Sandra Day O’Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit.  He has also written three textbooks,over 50 law review articles and over 80 opinion-editorials.  Here is his take on things:

So, “Is Hillary Clinton Unconstitutional?”  In a word, Yes – or, to be more precise, a Secretary of State Hillary Clinton would be unconstitutional.

The Emoluments Clause of Article I, section 6 provides “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.”  As I understand it, President Bush’s executive order from earlier this year “encreased” the “Emoluments” (salary) of the office of Secretary of State.  Lat I checked, Hillary Clinton was an elected Senator from New York at the time.  Were she to be appointed to the civil Office of Secretary of State, she would be appointed to an office for which “the Emoluments whereof shall have been encreased” during the time for which she was elected to serve as Senator.  The plain language of the Emoluments Clause would thus appear to bar her appointment … if the Constitution is taken seriously (which it more than occasionally isn’t on these matters, of course).

But presidents Taft, Nixon, Carter and Clinton all ignored the Constitution, and used a loophole around it.  They did it by lower the pay, after the fact.  But still, this is not necessarily legal. 

In Nixon’s situation, he nominated Sen. William Saxbe (R-OH) to serve as his Attorney General after the Saturday Night Massacre, but the AG’s salary had been increased in 1969 during Saxbe’s term.  Nixon persuaded Congress to lower Saxbe’s salary to the pre-1969 level, and the “Saxbe fix” was born.

Volokh continues on this matter about the Saxbe Fix:

Then there’s the infamous “Saxbe Fix” precedent, which I discuss in Lloyd.  Couldn’t Congress pass a repealing statute, or President Bush (or even President Obama) rescind the executive order, selectively, as to Hillary and make everybody happy?  Nope:  The clause forbids the appointment of someone to an office the emoluments whereof “shall have been increased”.  A “fix” can rescind the salary, but it cannot repeal historical events.  The emoluments of the office have been increased.  The rule specified in the text still controls.

Additionally on the Saxbe fix, Sen. Robert Byrd was opposed to this fix, saying the Constitution was explicit and “we should not delude the American people into thinking a way can be found around the constitutional obstacle.”


Volokh hased John O’ Connor, who wrote an article on the subject, The Emoluments Caluse:  An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89 (1995) [PDF], for his opinion on the matter.

“I think it is beyond dispute that Senator Clinton is currently ineligible for appointment as secretary of State.  I also believe that the better construction of the Emoluments Clause is that the “Saxbe Fix” does not remove this ineligibility.

… Therefore, under 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 increased” 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.

… By its plain language, the Emoluments Clause applies when the office’s salary “shall have been increased,” without regard to exactly how it was increased. … The clause also does not require that a Senator or Representative have voted for the increase.

The more difficult question is whether Senator Clinton’s ineligibility for appointment may be cured legislatively through the “Saxbe Fix,” where Congress reduces the Secretary of State’s salary to a level at or below where it was when Senator Clinton’s current term began in 2007. …

It is in my view that the Saxbe Fix fails to remove an ineligibility for appointment.  I believe the Saxbe Fix is ineffectual based on the plain reading of the Emoluments Clause and is also contrary to the intent of that clause.  The Emoluments Clause provides an ineligibility for appointment to an office the emoluments of which ‘have been increased.’  Even if the emoluments of the office are later reduced, it seems to me that they ‘have been encreased’ during Senator Clinton’s current Senate term even if they are later decreased.”


In 1993 President-elect Clinton sought to confirm Sen. Lloyd Bentsen (D-TX) as his Treasury Secretary, despite his having been reelected to the Senate in 1989 prior to a Cabinet pay raise.  On January 5, 1993, Senator John Glenn and others introduced S.J. Res. 1, which read in its relevant parts:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) the compensation and other emoluments attached tot he office of Secretary of the Treasury shall be those in effect January 1, 1989, notwithstanding any increase in such compensation or emoluments after that date under--

(1) the Ethics Reform Act of 1989 (Public Law 101-194) or any other provision of law amended by that Act; or

(2) any other provision of law, or provision which has the force and effect of law, that is enacted or becomes effective during the period beginning at noon of January 3, 1989, and ending at noon of January 3, 1995.


This joint resolution shall become effective at 12:00 p.m., January 20, 1993.

It passed both Houses without objection, and was signed into law by President Bush on January 19, 1993.  Bentsen would receive an annual salary of $99,500 for his Cabinet service, far less than his colleagues at $148,400.  When the issue threatened to resurface in 1996 upon the nomination of Cong. Bill Richardson and Sen. William Cohen to UN Ambassador and Defense Secretary, respectively, the USDOJ Office of Legal Counsel mooted the issue by noting that the pay increase for Richardson’s position occurred prior to his current term in Congress, and that Cohen’s Senate term would expire before his being sworn in.

Again however, this goes back to what Volokh said on the matter that a"’fix’ can rescind the salary, but it cannot repeal historical events.  The emoluments of the office have been increased.  The rule specified in the text still controls.”

Additionally, President Bill Clinton re-wrote part of the Constitution in 1998.


The mostly Democratic Congress will just type up a new “bill” to fix everything, thus changing our Constitution so that Hilliary can sit in office.

Just like Obama not needing to show his "Birth Certificate” but instead choosing to show a document titled “Certification of Live Birth” which does not show his birthplace, thus a Constitutional violation.  Additionally his Aunt stated she witnessed his birth in Africa.  And the Kenyan Ambassador has stated that Kenya is planning on building a monument in Kenya at Obama’s birthplace.

Just like Obama wanting to require school aged children and college students to “serve” by doing hours of community service, which is a 13th Amendment violation.

And all of this before the man is even in office.

All I have to say on the matter, is that if Clinton is appointed to the Secretary of State seat, this blog will end as our Constitution is slowly being killed off by Obama.  The “change” will be that there will no longer be a Constitution, and thus all your rights including freedom of speech, right to freedom of religion, and simply your right to freedom.

And what is truly sad, is that no one seems to care.


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