President-elect Barack Obama
plans to nominate Senator Hillary Rodham Clinton as his secretary of state on
Monday.
Hillary’s nomination will be made in the face of the Constitutional prohibition in the Emoluments Clause (Article I, Section 6, clause 2):
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.
That’s quite clear. A Senator, such as Hillary, is prohibited from serving in any federal office “created” or the “emoluments whereof” were increased during the Senator’s term.
The salary of the Secretary of State was increased in January 2008 by an executive order,
promulgated pursuant to a 1990s cost of living adjustment statute. Because the increase occurred during the time Hillary was a Senator she can not be the Secretary of state.


