By Nick Troiano
Our Constitution is the absolute bedrock of our Democracy. It was intended to be an enduring document that defined the social contract between citizen and state while establishing the framework of our government. Its contents are not suggestions, not just mere words to follow when expedient and ignore when inconvenient. More than the leaders that come and go throughout time, the text of the Constitution must be the ultimate authority.
With this understanding, and no other partisan motivation whatsoever, I believe Article 1, section 6 of the Constitution should be strictly applied to Senator Clinton's nomination. I believe that we need to reverse the legislative precedent set in the past and uphold the Constitution as our Founders wanted, and as each elected official pledged to do upon taking their oath of office.
The logic behind concluding Senator Clinton is ineligible is simple: If, according to the Constitution, a member of Congress cannot be appointed to an office whose emoluments (which includes salary) "have been encreased" during which time he or she was a member, than Hillary Clinton, United States Senator at the time when the salary of Secretary of State was increased by Executive Order, cannot be appointed. A straightforward reading of the text will produce such a conclusion, which needs not further examination or explanation. Her potential confirmation, under the current circumstance, would be a direct violation of the Constitution.
Some argue that if we were to repeal the salary increase, it would cure this Constitutional issue (this is the so-called "Saxbe fix" deriving its name from the Nixon era when it was first used). That is not so. No matter what happens after the salary has increased, nothing will change the facts that: 1). the "emoluments ...shall have been encreased" (meaning that they were at one point in time higher than another) or that 2). she was a member of Congress during said time. There is no going around how the Constitution reads. There is no need to search for intention when the clause is as unambiguous and precise as this one is. House Democrats knew this when the Saxbe fix was first used by President Taft; they realized after the pay raise became law, no subsequent action could undo the effect of the clause. The same can be applied today. Thus, the only legal remedy would be to amend the Constitution or to suspend the Senator Clinton's appointment.
This literal interpretation applies to other prohibitory clauses of the Constitution. For example, candidates for President need to be 35 years old. Congress cannot just waive that provision for office. All analogies fall short of course, but one comes close: Dean William Lorenson compared the clause to the law of automobiles having to stop at a stop sign. The spirit of the law may be that cars should stop so as to not enter the intersection when another car is coming to avoid an accident. But if a car blows a stop sign because it is early in the morning and there are no other cars on the road, that would not be a legal defense for a ticket. In other words, the literal interpretation of laws, regardless of their spirit, are already applied in every day life.
Yet, I do not believe a person arguing my position needs to concede the idea that the Saxbe fix is consistent with the spirit of the clause. Constitutional Law Professor Eugene Volokh, in his law review, states that a secondary purpose of the clause was to "limit the size, importance, and reach of the federal bureaucracy" by providing a disincentive to members of Congress to raise the benefits of civil offices or create new ones. In other words, members of Congress who may seek higher positions in government would be less likely to vote for pay raises and create new positions if that barred them from assuming those offices. This is a perfectly logical intent for the clause, and would be completely undermined, not supported, by the Saxbe fix, which would grant exceptions to members of Congress.
The most dangerous thing we can do as a democratic society is disregard our Constitution when it is expedient to do so or when we happen disagree with it. The constitution has a clear process to be amended, and that process is what must be used when we want to change it. We cannot simply mute what the law says when it is blatantly clear how it is to be enforced. We cannot be at the whims of the majority, whoever they are and whenever they hold power. This is why honoring our Constitution is so vital, even if it is viewed as a nuisance and even when we use such words as "technicality."
I actually think Senator Clinton ought to be able to assume the position (save for this Constitutional dilemma) if the President and the Senate deem so. But I realize it is improper and against the wise judgement of our Founders to have an evolving interpretation of the document that is supposed to mean the same to one generation as it does another. So while I am very opposed to her nomination, I would support a Constitutional Amendment that limits the clause from being applied when salaries or other benefits are raised by the Executive Branch, not Legislative, as is the current case.
President Reagan showed restraint and appreciation for the Constitution when he passed up Senator Hatch when he filled a Supreme Court vacancy during his administration specifically because he deemed Hatch to be ineligible based on this clause. He did not go the route of a legislative remedy (untested by our Courts) as Taft, Nixon and Clinton did. That is the type of judgement and leadership necessary in a President who takes an oath to preserve, protect and defend the Constitution of the United States.
So when our President lacks this judgement, and when our Congress lacks the courage to stand up to him, it is We the People's job to hold them all accountable and ensure that our Constitution endures to next generation as significant and powerful a force as it was intended to be 223 years ago. That includes ensuring our next Secretary of State is Constitutionally eligible to hold the position.
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2 comments:
Excellent argument regarding the constitutionality of HRC's nomination. It has been pointed out that the greatest thing about the Constitution is that it is a "living, breathing document" and that the worst thing about the Constitution is that it is a "living, breathing document."
Before getting specifically to your argument, allow me to make another point: The United States Constitution is not absolute as it has been written. It is true, as you have said, that we cannot uphold the Constitution when it is expedient while ignoring it when it is inconvenient. Consider that free speech is said to be protected, yet speech equivalent to yelling "fire" in a crowded theater is deemed illegal - Would this not count as ignoring the Constitution? Lest we forget that the Constitution is subject to interpretation, or there would be no need for judicial review.
Side note: As for the SCOTUS, it is the only court set up by the Constitution. Are we to say that our entire legal system that exists below the SCOTUS is unconstitutional since it was not spelled out originally? Are municipal governments illegal law-making bodies because federalism was spelled out as the relationship between federal and state?
Article 1, Section 6 was, presumably, set up to curtail self-dealing and corruption. Is it corrupt that HRC's nomination comes at a time when a president with no advance knowledge of this situation raised pay for all federal employees? Did HRC somehow persuade President Bush to raise federal wages in FY 2007, thereby setting up this situation? The answer to the latter question is simple enough: No, of course not. The answer to the first question, I believe, can be found in the last phrases of Article 1, Section 6: no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. The last phrase int he second clause leaves open the possibility of her resigning before accepting the position of SoS.
It has been argued that HRC would not be able to accept the position until 2013 when her Senate term expires. How would it be different if she were not a senator in 2009 before accepting taking the position?
I bring your attention back to the side note on the SCOTUS. Jurists, both liberal and conservative, have interpreted the Constitution as they see fit, whether it was expanding rights or defining restrictions. Occasionally SCOTUS will step in to clarify, while usually it is the lower courts, a legal system never set up by the Constitution, to decide on constitutionality.
My point being that there is no way the Founders could have predicted every situation that would occur, or that this nation would be 223 years old. I see no harm to the Constitution in allowing Congress to work around the clause in question, for it has been done before.
I'll leave you with talking points released by the transition team:
· This provision does not prohibit the appointment of Senator Clinton as Secretary of State.
· Historical practice and Department of Justice interpretation have in fact permitted appointments of members of Congress to such offices so long as their salaries are based on the levels set before the relevant term of office.
· This longstanding practice—which dates back at least 100 years to President Taft's appointment of Philander Knox to be Secretary of State—is often referred to as the "Saxbe Fix," referring to the arrangement whereby Congress set the salary for President Nixon's nominee for Attorney General William Saxbe so it would reflect the salary level in place before his congressional term of office.
· Other cabinet officials appointed under such an arrangement include Secretary of State Edmund Muskie and Secretary of the Treasury Lloyd Bentsen.
· As constitutional scholar Ron Rotunda has explained, as a matter of historical practice, Congress has interpreted the ineligibility imposed by this clause as nonabsolute; that is, a Senator (or Representative) could be appointed to an office although the emoluments had been increased during the term for which the Senator (or Representative) had been elected to Congress, if the increase were rescinded.
· This interpretation fully satisfies the concerns motivating this constitutional restriction, by removing any risk of self-dealing.
· So long as Congress agrees to set the salary for the Secretary of State at levels set before the start of Senator Clinton's current term--which began on January 4, 2007--her appointment will satisfy the Constitution as it has long been interpreted and applied.
I forgot to speak to your proposed solution of an amendment...
Would not limiting the amendment to only include the Executive and ignore the Legislative leave the window open for crafty politicking? Pretend the amendment passes as you and others have proposed. Now consider the upcoming dominance of Democrats, or even if it were Republicans, in the two branches: Could a Democratic legislature raise pay for civil positions if they were confident their president would win a second term and thus appoint more congressional members to civil positions? The amendment as proposed could not simultaneously uphold the intent of Article 1, Section 6 and accommodate the definition of the amendment. The amendment would have to include all branches, but then doesn't that just open the same debate we are having now?
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