There is actually a legitimate disagreement over the meaning of “increased.”

the emoluments whereof shall have been increased during such time

There are two possible meanings of this phrase:

1) Given any two points in that time period, you could find two points with different salaries such that the more recent is higher. In this case, Hillary Clinton is, in fact, constitutionally barred from serving as Secretary of State. OR

2) If one were to compare the salaries at the endpoints of the time period, the salary at the beginning cannot be greater than the salary at the end. In other words, if the salary on the day Clinton is confirmed is the same or lower than the salary was the last time she was elected, then technically the salary has not “increased” during her time in office, it has changed, but nets an increase of nothing. In this case, she is constitutionally eligible to serve as Secretary of State.

As a mathematician, I find both arguments compelling, and since the literal reading of the constitution yields two possible meanings, I’m inclined to err on the side of saving our political capital for other battles.

I think the bigger question is how does Barack Obama plan to nominate anybody for anything as he hasn’t been sworn in as president yet?

The debate at the Federal Convention was vigorous, and the precise wording of Article I, Section 6, Clause 2 was intentional.

Records of the Federal Convention

[1:379; Yates, 22 June]

Mr. Madison. Some gentlemen give too much weight and others too little to this subject. If you have no exclusive clause, there may be danger of creating offices or augmenting the stipends of those already created, in order to gratify some members if they were not excluded. Such an instance has fallen within my own observation. I am therefore of opinion, that no office ought to be open to a member, which may be created or augmented while he is in the legislature.

(Snip…)

Mr. Hamilton. In all general questions which become the subjects of discussion, there are always some truths mixed with falsehoods. I confess there is danger where men are capable of holding two offices. Take mankind in general, they are vicious–their passions may be operated upon. We have been taught to reprobate the danger of influence in the British government, without duly reflecting how far it was necessary to support a good government. We have taken up many ideas upon trust, and at last, pleased with our own opinions, establish them as undoubted truths. Hume’s opinion of the British constitution confirms the remark, that there is always a body of firm patriots, who often shake a corrupt administration. Take mankind as they are, and what are they governed by? Their passions. There may be in every government a few choice spirits, who may act from more worthy motives. One great error is that we suppose mankind more honest than they are. Our prevailing passions are ambition and interest; and it will ever be the duty of a wise government to avail itself of those passions, in order to make them subservient to the public good–for these ever induce us to action. Perhaps a few men in a state, may, from patriotic motives, or to display their talents, or to reap the advantage of public applause, step forward; but if we adopt the clause we destroy the motive. I am therefore against all exclusions and refinements, except only in this case; that when a member takes his seat, he should vacate every other office. It is difficult to put any exclusive regulation into effect. We must in some degree submit to the inconvenience.

I concur. By strict reading of the clause and the flavour of the debate regarding said clause, Sen. Clinton is constitutionally ineligible for the position.

IS just a minor impediment to the left.

By strict reading of the clause and the
flavour of the debate regarding said
clause, Sen. Clinton is constitutionally
ineligible for the position.

The debate centers about conflict of interest, which very much seems to be the essence of the Emoluments clause — and a conflict of interest exists if the salary the person who benefits from higher emoluments which he himself brought about. No higher salary — no conflict of interest.

I very much agree with Pippin — a absolute non-issue because the fix is perfectly constitutional.

The points made on this post are all good. However the actual appointment does not occure until January 20, 2009 when Obama becomes President. After his swearing in he will sign the official appointment order which will be presented to the Congress. The Senate hearings on the new cabinet secretaries will take place prior to the inaugaration. Senator Clinton will resign her seat in Congress probably within the next two weeks. But the points regarding conflict of interest and absolute power are good.

No news at eleven.

“Professor Volokh concludes “it is beyond dispute that Senator Clinton is currently ineligible for appointment as secretary of State.” I agree.”

Professor Volokh does NOT conclude that at all… The words are John O’Connor’s, whom Professor Volokh asked to weigh in on this issue, and the quote above is taken from John O’Connor’s reply. You will find that Professor Volokh’s own views at the bottom of the post you linked to are much less definite.

I dont know about the constitutionality of this, but it would be pretty funny if Hillary wasn’t allowed to become Secretary of State. Imagine how pissed off her supporters are going to be!

In that case, she won’t be a senator when she’s appointed but an ex-senator.

And who is going to enforce it?

As I read it, if they lower the office’s pay to what it was when Clinton took office as Senator, then it’s legal.

Look at it this way: If I’m your employer, and I give you a pay raise, then cut your pay back, have I actually raised your pay?

I say no.

no one of importance, and I use that word lightly, has spoken out against her for THIS reason. She’ll be nominated, they’ll lower the salary (like she needs the money anyway), and then they’ll confirm her.

To me, this clause is ridiculous and proves that we need either a new constitution entirely or a massive re-write. It basically says, “So what if your the best person for the job!”

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no one of importance, and I use that word lightly, has spoken out against her for THIS reason. She’ll be nominated, they’ll lower the salary (like she needs the money anyway), and then they’ll confirm her.

To me, this clause is ridiculous and proves that we need either a new constitution entirely or a massive re-write. It basically says, “So what if your the best person for the job!”

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The debate does not question whether Sen. Clinton will be Secretary of State.

It does point to the fact, as evidenced by your comment, that the U.S. Constitution is modern-Liberalism’s worst nightmare and is viewed by the left as an obstacle which must be overcome.

Bentsen was SecTreas, not SecState.

I think the constitutional argument is fabulous. I’m sorry to say that the court has nullified the constitution before when it had a text this clear. See the contracts clause.

provision. Our courts have consistently held that you cannot take a position for which you voted a pay increase or a position that was created while you held legislative office.

The interpretation has been so narrow as to prohibit a legislator to take a regular state job after leaving office if he/she voted on a pay increase for the job even in the form of granting legislative approval of a union constract setting the wage for a job.

All inconsistent laws are now deemed “repealed” in favor of the Great One’s wishes. Obama and the Dems are now the rulers of America. Rules must obey Obama, not the other way around. That’s the essence of the last election.

Senator-turned-to-Secretary Hillary Clinton will be the undisputed proof that …

“Obama is nothing but “more of the same”!

… and all his campaign rhetorics were just “lies”!

In short, let the Obama and the Dems have their time of day to do whatever they want…

in order for the Dems to self-destruct!

Let the “52″ have the “full taste” of their grapes. Let the “48″ record and emphasize all the follies of the Great One and the ruling Dems,… “ex-post”, not “ex-ante”.

Let them do whatever they want in 2009 and in half way of 2010. By then, half of the 52 will realize the “idiocy” of their decision last November 5, the day when the idiots and dumbs have ruled America.

Let the 42 preserve themselves and wait for their time in 2010 and 2012. At that time, the 48 and half of the 52 will make things RIGHT!

I understand the general purpose of the clause, but doesn’t executive privilege trump it?

I mean, a clause that prevents the president from promoting a key individual from the legislative branch to the executive branch makes no sense. If both positions were part of the same branch, one could argue about balance of powers.

I think that clearly, whatever the founders intended to prevent, is not in jeopardy of being violated, even if the words are being violated.

don’t you know. It says “No Senator or Representative shall, during the time for which he was elected . . .”. Since, as far as we know, Senator Clinton is not a “he”, the clause simply doesn’t apply to “her.” Don’t you just love all of those cracks in the glass ceiling?

They’ll need all the loopholes they can get.

The Constitutional prohibition would seem to apply to any position that was created or the pay increased by the Legislature during the tenure of the member. Thus to preclude any self-serving action by members of Congress. As I understand it, the SecState pay was increased by exec order based on legislation that occured in the 1990’s. If the legislative action providing for the pay increase occured prior to Clinton becoming a Senator, I don’t see how there could be a conflict of interest under teh current circumstances. If, however, the pay increase was as the result of legislation that occured during Clinton’s stint in the Senate, there is a clear Constitutional prohibition. It’s not as if Hillary had any influence on President Bush raising Secretary Rice’s salary - that would have required a powerful crystal ball on her part indeed.

I just heard on fox that as a part of Hillary’s appointment as Sec. of Stae that Bill can no longer do overseas trips to do fundraisers. Does this mean that Obama has effectively cut the Clinton’s off at the knees? Caller on talk radio today was thrilled that Hillary was appointed Sec. of State as she can no longer do her damage in the Senate, and now she can be fired. I cannot see either Clinton as towing the line, rather than snaging that line for their own purposes. They don’t do lackey.

Two days after the election, Mike Luckovich had a cartoon in the Atlanta Constitution-Journal that portrayed Obama taping the Constitution back together. Of course, Luckovich (as well as all Americans) has every right today that he had in January 2001. But the cartoon becomes even more ridiculous when you consider Obama is violating the Constitution by nominating Hillary for Secretary of State.

Link to cartoon (have to click back to November 6):
http://projects.ajc.com/gallery/view/opinion/luckovichnov08/