Chapter 2
Many provisions in the U.S. Constitution are conveniently vague, affording politicians of different parties and ideologies the chance to interpret the document as they wish.. What about constitutional provisions that are extremely specific and less susceptible to interpretation? So long as the two major parties are in agreement, even those provisions may offer few constitutional obstacles. Consider the dilemma facing Senator Hillary Clinton of New York after her appointment as the nation’s 67th secretary of state. By executive order issued in January 2008, the salary of the secretary of state increased from $186,600 to $191,300 per year. What’s the problem? Article One, Section 6 of the Constitution reads as follows:
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 … the Emoluments whereof shall have been increased during such time ...”Did the Constitution bar Hillary Clinton from accepting the post of secretary of state? John F. O’Connor, who has studied the clause in detail,1 believes that “it is beyond dispute” that Senator Clinton is ineligible under the clause to be appointed as secretary of state. When President Obama selected Senator Ken Salazar of Colorado to be his secretary of the interior, the same issue resurfaced.
Members of Congress, both Republicans and Democrats, quickly resolved the situation by means of the so-called Saxbe fix, named after Senator William Saxbe who was appointed as attorney general by President Richard Nixon in 1973. In Saxbe’s case, Congress reduced the attorney general’s salary to pre-1969 levels by legislation and subsequently approved his appointment. In a similar fashion, Congress in December 2008 passed (and President George W. Bush signed) legislation cancelling all salary increases made during Hillary Clinton’s Senate term.
Several constitutional scholars (including O’Connor) and at least one public interest organization (Judicial Watch) believe the so-called Saxbe fix is unconstitutional. Yet no lawsuit to date has survived. Assuming that both political parties and their leaders in Congress have consented, who is “personally aggrieved” enough by the “Saxbe fix” to sue? More important, who are the victims of this effort to circumvent plain constitutional language? In an ironic twist, the real victim may be Hillary Clinton herself, who as secretary of state was forced to accept a lower salary than that of her predecessor, Condoleezza Rice.