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Washington, DC -- December 2, 2008
Ineligibility Clause of Constitution Prohibits Clinton Appointment
Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that Senator Hillary Rodham Clinton is constitutionally ineligible to serve as Secretary of State in the Obama administration.
According to the Ineligibility Clause of the United States Constitution, no member of Congress can be appointed to an office that has benefited from a salary increase during the time that Senator or Representative served in Congress. A January 2008 Executive Order signed by President Bush during Hillary Clinton's current Senate term increased the salary for Secretary of State, thereby rendering Senator Clinton ineligible for the position.
Specifically, Article I, section 6 of the U.S. Constitution 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." The provision is seen by most as designed by our Founding Fathers to protect against corruption.
Former President Richard Nixon circumvented this constitutional provision after appointing former Ohio Senator William Saxbe to the position of Attorney General. The Nixon administration managed to force legislation through Congress to reduce the salary for the position of Attorney General to the level that existed prior to Senator Saxbe's appointment. This scheme, known thereafter as "The Saxbe Fix," was also used to allow Senator Lloyd Bentsen to assume the position of Treasury Secretary under President Clinton.
"The Saxbe Fix" may reduce the salary of Secretary of State to previous levels, but it does not affect what is a clear constitutional prohibition. It cannot change the fact that the salary had been increased while Senator Clinton served in Congress. (President Ronald Reagan reportedly did not appoint Senator Orrin Hatch to the Supreme Court because of this provision.) Simply put, the Constitution does not provide for a legislative remedy for the Ineligibility Clause.
"There's no getting around the Constitution's Ineligibility Clause, so Hillary Clinton is prohibited from serving in the Cabinet until at least 2013, when her current term expires," said Judicial Watch President Tom Fitton. "Barack Obama should select someone who is eligible for the position of Secretary of State and save the country from a constitutional battle over Hillary Clinton's confirmation. No public official who has taken the oath to support and defend the Constitution should support this appointment. 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."