December 4, 2008

"What's a little matter like the Constitution among friends?"

The Emoluments Clause.

It's strange the way we feel we can ignore -- or massage away -- words of the Constitution that don't seem to serve the purpose for which they were written.

But since it is the way we are, I would like to encourage Arnold Schwarzenegger to run for President.

AND: Lawprof Larry Tribe is giving massages over here:
My recent book, "The Invisible Constitution" (Oxford University Press 2008), argues that much of what we both do and should regard as the United States Constitution is neither expressed by, nor plausibly inferable from, the document's text. The book develops six models -- geometric, geodesic, global, geological, gravitational, and gyroscopic....

48 comments:

Simon said...

Alexander Hamilton said it best: writing to advise Washington on the Constitutionality of the Bank of the United States, he noted that "[n]othing is more common than for laws to express and elect more or less than was intended." It takes no great subtlety to reconstruct the purpose and intent of the clause, and when we do so, we see that Hillary Clinton is in a perverse position: she is in the periphery of the clause's purposes, but squarely within its text." The rule is what would have been fairly imported by the text words at the time it was adopted, not the scope that its authors envisioned (the "original expected application," as Balkin calls it); it would not be said that the court has erred in saying that the equal protection clause applies to sex discrimination even though its authors had no such intent.

To allow Clinton's appointment would require a chain of reasoning worryingly similar to that castigated by Justice Scalia (joined by Justices Brennan, Marshall and Stevens) in Maryland v. Craig (and recently condemned again, now by a majority including Scalia and the court's liberal bloc, in United States v. Gonzalez-Lopez): it would abstract from the prohibition to its purpose, conclude that Clinton's appointment does not offend the purpose, and then bypass the prohibition. This just won't do.

MadisonMan said...

I'm not sure if the Saxbe fix will fix things, but let me say that emolument is a marvelous word.

Say it with me! Emolument. Emolument. Emolument.

There, now don't you feel relaxed?

Simon said...

Eh. Probably the first time she's been in a perverse position in quite some time. It'll do her good.

JAL said...

Ann, I am glad to see you bring this up. Was it here or elsewhere last week that the Emoluments Clause was explained, with the idea that Senator Clinton was disqualified?

While Hillary's appointment has been all over the news in recent days, I saw no headlines about the Consitutional issues -- but then, I am not looking very closely.

(But then the media does not seem to care about exploring the hard things about how this country is supposed to work, or has done things, or why.)

If the powers to be pretend the Emoluments Clause isn't there -- and / or don't tell the hoi polloi that what it going on specifically violates the law on a national level, what really can we expect in the future?

I can even see where this could fuel the birth certificate thing some more. There is a certain air of "the rules don't apply to us" going on here. (Think campaign donations abuses.)

For a lecturer on Consitutional Law at Chicago Barack Obama does not seem to be well informed -- or give a damn about the integrity of the process or respect for the law.

Expat(ish) said...

People, and I stretch to include most liberals in that omnibus word, have been misunderstanding the 2nd amendment for so many years I wonder that this behavior surprises.

The 4th has taken quite a battering too. Doesn't it amaze you that the police can break into the wrong house on a no-knock warrant and arrest the homeowner for shooting at them? Or, since the arrests are thrown out, just more simply shoot them and pay a small monetary penalty.

I hate to sound all TEOTWAWKI and all, but really.

-XC

Jeff with one 'f' said...

"It's strange the way we feel we can ignore -- or massage away -- words of the Constitution that don't seem to serve the purpose for which they were written."

Isn't that more of a leftist phenomenon?

Simon said...

MM, it's an interesting choice of word, because it makes you wonder what it contains. It is clearly a broader term than "compensation": for example, Article II § 1 provides that "[t]he President shall, at stated times, receive for his services, a compensation ... and he shall not receive within that period any other emolument from the United States, or any of them" (emphases added), and Hamilton, in The Federalist, No. 73, referred to the discretionary power of Congress "over the salary and emoluments of the Chief Magistrate" (emphasis added). The emoluments of an office must include things other than just the salary, which would bring into the clause's sweep, I would think, something like a cost of living allowance and an increase therein.

On the other hand, "emoluments" as the Constitution uses that term can't include perks. Is Air Force One unconstitutional? Reconsider the language just quoted from Article II: a President will receive a compensation, "and he shall not receive within that period any other emolument...." Since the earliest days of the Republic, the President has had perks: a house, transportation, and so forth. If these perks are emoluments, they violate the language just quoted. While "[t]he existence from the beginning of the Nation's life of a practice ... is not conclusive of its constitutionality[,] ... such practice is a fact of considerable import in the interpretation of abstract constitutional language." Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 681 (1970) (Brennan, J., concurring) (citation and internal quotation marks omitted). We should infer from longstanding practice that perks are not emoluments; Clinton could not be barred if, for example, the Secretary of State was granted discretionary use of a personalized jet last year. Article II suggests that the original meaning of "emoluments" is broader than "salary" but includes only those things that an office holder can take with them when they leave. A perk enjoyed ex officio that ceases on leaving office does not count.

Cedarford said...

Since the Constitution is all but un-Amendable, I propose that we do what just about every President since Washington, Jefferson, Madison has done. Ignore it.
The other alternatives are:

1. The Saxbe precedent - pay the legislator now appointee at the salary that existed before the COLA increases were voted.
2. Make the case that the intent was to prevent a conflict of interest where a legislator carved out a lucrative job like High Customs Commissioner for Boston with Legislation, or knew he was going to be appointed soon to be Ambassador to Portugal and made a law that rewarded all Ambassadors a 40% pay increase. (No need for such emoluments now that lobbyists, K-Street, and the Revolving Door is in place.)But stake a claim that COLAs are outside the intent and you won't work at the rate that existed 10 or 30 years ago when your peers are making much more - so damn the Saxbe strategy.
3. Fix the Constitution (ha! ha!)
4. Don't say a thing and just let the Republican Right Wing make asses out of themselves arguing that Hillary is disqualified because she voted for COLAs. And for than matter, Hillary+John McCain+Fred Thompson were all ineligible to run for the Presidency, along with all the others that came to the Presidency or VP position after being in Congress 5 years or greater.
(That could be almost as funny as the Right Wing Truther squads claiming Obama had a Secret Kenyan Birth disqualifying him..which I guess would mean Biden would go in if he accepted the salary and White House budget that existed back in 1971 before he got to the Senate. )

mccullough said...

Obama is not quite the constitutional scholar he was portrayed as, I guess.

Shredding the Constitution for his personal gain. W.'s got to be laughing his ass of here.

Simon said...

JAL said...
"Was it here or elsewhere last week that the Emoluments Clause was explained, with the idea that Senator Clinton was disqualified?"

It was at SF, for one: we were on this story ten days before Volokh and Instapundit picked up on it.

Jeff with one 'f' said...
"Isn't that more of a leftist phenomenon[?]"

Clearly not, given that the Saxbe fix was invented at the request of Richard Nixon, to allow him to appoint Sen. William Saxbe (R-Ohio), and was penned by that noted leftist Robert Bork.

Ann Althouse said...

"Emolument" seems funny because it's close to "emollient," but the 2 words have completely different routes. There's no lotion involved in "emolument" which is based on the idea of grinding. "Emollient" is based on the idea of softening. Softening... grinding... yes, I know, it still sounds sexy.

Simon said...

JAL said...
"For a lecturer on Consitutional Law at Chicago Barack Obama does not seem to be well informed -- or give a damn about the integrity of the process or respect for the law."

He didn't teach real Constitutional law, he taught rights conlaw, "shifting about the formless sands of rights" instead of dealing with what really matters: the structure of the thing.

Simon said...

Cedarford said...
"Since the Constitution is all but un-Amendable...."

Plainly not, when it has been amended 27 times, and at least twice unwisely so. The Constitution can be amended when there is a genuine conviction that it must be; when an amendment fails, that is not evidence that Article V is broken, but that it works.

"which I guess would mean Biden would go in if he accepted the salary and White House budget that existed back in 1971 before he got to the Senate."

The emoluments clause has no application to Biden or Obama; it bars appointment not election. I know you have nothing but contempt for the Constitution, but if you must try to pontificate about what it means, do try reading it first.

MadisonMan said...

I just like the mouth-feel of the word.

Simon said...

Ann Althouse said...
"There's no lotion involved in 'emolument'"

An emollient could be an emolument - "the Secretary of State shall receive a salary of $220,000 p.a., the use of a car and a driver, and a really, really large tub of hand lotion."

Chris said...

Someone is bound to sue the minute she is confirmed. What will be interesting is how the courts deal with the situation. Simon seems to have things pretty much in hand.

Roger J. said...

Simon--I think you and I agree on the 17A but what is the other one you disagree with? Perhaps the income tax amendment?

Simon said...

Roger - I had in mind the one that was so obviously and self-evidently silly that it was repealed. ;)

And yes, the Seventeenth is the other one I had in mind. The Sixteenth Amendment is one that I'm sanguine about. As I explained in a post discussing my beef with the Seventeenth, my view is that although the power conferred by the Sixteenth Amendment is dangerously expansive, it's the combined effect of increasing federal power while eliminating state influence against the use of federal power that has been so toxic. If, of the two, only the Sixteenth Amendment had been passed, the federal government would have gained considerable flexibility in its legitimate sphere, and because the states would have retained their institutional representation in the federal legislative process, the abuse of that power would have been far more circumscribed. For example, the unbridled taxing power allows Congress to bribe the states with their citizens' money; it seems likely that a Senate that still represented states would have been a bulwark against such federal coercion, because Senators would be pressured by mutually assured destruction to form an unofficial rule against such encroachments.

Roger J. said...

Simon: thank you.

OldGrouchy said...

What's much more interesting is Ex-President Clinton's position if he's appointed to fill the next two years of Hillary's senate seat.

Which salary will he accept?

The precedent of John Q. Adams wouldn't help since old John Q. didn't get a pension from his being President. But, Bubba Billy has a pension from his presidency days and then there's a senator's salary. And, doesn't the Constitution forbid a person from taking two federal salaries at one time?

Kirk Parker said...

Hmmmm. Nobody takes me seriously when I posit that C4 is a leftist mole, but just look at this and tell me if it isn't more evidence:

"Since the Constitution is all but un-Amendable, I propose that we do what just about every President since Washington, Jefferson, Madison has done."


:-)

former law student said...

One minor problem. According to the US DOJ, the Emoluments Clause is U.S. Const., art. I, § 9, cl. 8

No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.

Hillary's pretty safe here.


The clause her appointment would violate is called the Ineligibility Clause.

But imagine some mischievous Democrats who raised the SoS salary $1, to prevent W. from naming a Senator to the post.

Original Mike said...

If she takes the position at the old pay level it clearly satifies the intent of the Emoluments Clause, so I don't see the problem.

former law student said...

I agree with Original Mike. If the framers had meant to keep sitting Senators and Representatives our of the Executive branch, they could have said so. Then all the jazz about "emoluments" would have been surplusage. The only way the clause makes sense would be to roll back any increased compensation, etc. (Window office, free use of a horse and carriage, etc.)

Joe said...

The WSJ is wrong; changing the salary of the Secretary of State does not satisfy the constitutional issue. The language is absolutely plain: if a salary for an office was increased, a senator or representative cannot be appointed to that office during the term for which they were elected. Reducing the salary does not negate the fact that it was increased. Words either mean something or they mean nothing; Obama needs to choose.

(FWIW, I would prefer a total ban on appointing Senators and Representatives to offices during the term for which they were elected.)

Original Mike said...

Reducing the salary does not negate the fact that it was increased.

And pushing this point accomplishes what, exactly?

Steven said...

Original Mike —

Well, first, it honors the actual meaning of the Constitution instead of setting another precedent where those in power ignore it when it's inconvenient. You know, supports the rule of law and not of men?

Second, it keeps Senators and Representatives from getting appointed to the Executive Branch. That's useful even if it isn't the original intent.

Original Mike said...

Steven - Your second point kinda negates your first, doesn't it?.

I'm very much for following the Constitution (and I'm no supporter of Hillary), but I think the Saxbe precedent does follow the Constitutional intent. And I think advancing a nitpicking argument("reducing the salary does not negate the fact that it was increased") does not respect the Constitution.

cokaygne said...

What about the fact that both Bush and Chaney were residents of Texas when chosen as President and Vice President? Was that not a violation of Amendment XII? Has not the Executive branch been in illegitimate hands for the 8 years since Bush and Chaney received Texas's electoral votes in 2000?

For that matter, how can any POTUS and VP, both of whom reside in public housing located in DC run for 4 more and receive DC's electoral votes?

Seriously, though, this is why I and many others hate (HATE) lawyers. You all are paid big bucks to make the case that the law doesn't mean what it says, or it may mean what it says but not in this case. If you want to know what the law means, you've got to hire a lawyer. Then the lawyer that you hire will ask another lawyer who is politically well connected and consequently has been appointed a judge to decide what the law means in this case.

former law student said...

it keeps Senators and Representatives from getting appointed to the Executive Branch. That's useful even if it isn't the original intent.

Sure, just like keeping guns out the hands of the citizenry is useful, even if that wasn't the original intent. (Let them join the National Guard. A few tours of duty in Iraq would do them good.)

But looking at actual history, both Daniel Webster and Cordell Hull were sitting Senators when they were appointed to be Secretary of State (Webster on his second tour). Hull was the longest serving SoS, so there was plenty of time to object to him. Somehow the Republic survived.

Roger J. said...

Whatever the case about emoluments, I for one am thankful that quartering amendment has been so successful. Never once have I feared that troops will be living in my house.

blake said...

But looking at actual history, both Daniel Webster and Cordell Hull were sitting Senators when they were appointed to be Secretary of State (Webster on his second tour). Hull was the longest serving SoS, so there was plenty of time to object to him. Somehow the Republic survived.

Were the emoluments for the SoS increased during Webster and Hull's respective terms?

Simon said...

Original Mike said...
"If she takes the position at the old pay level it clearly satifies the intent of the Emoluments Clause, so I don't see the problem."

Because it doesn't satisfy the rule of the clause, and it's the rule - the text and what it fairly imports - that is binding, not the framers' intent.

Original Mike said...
"I think the Saxbe precedent does follow the Constitutional intent. And I think advancing a nitpicking argument ... does not respect the Constitution."

Following the text that was ratified rather than deciding what you think they intended and following that isn't "nitpicking." It's absurd that you should claim to be "very much for following the Constitution," berate someone for not respecting it, and then casually discard it yourself because you feel sure that the framers didn't intend to bar Clinton. No doubt this is an unintended consequence, but it is a consequence of the language nonetheless.

The only argument you could hope to make is that the text allows the Saxbe fix because "increase" is ambiguous - is the clause violated when someone is appointed after, say, the salary has been raised, or is it only violated if someone is appointed and the salary is greater than it was when they took office? It seems entirely clear to me as a textual matter that it's the former. To say that the latter reading is plausible would require the assumption that "shall have been increased" = "shall have increased." So the only argument you could make violates the surplusage canon.

cokaygne said...
"What about the fact that both Bush and Chaney were residents of Texas when chosen as President and Vice President? Was that not a violation of Amendment XII?"

No: "The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves...." The limitation is on electors, not candidates. And in any event, Cheney moved his residence back to Wyoming, IIRC, to preempt the loss of Texas' electoral votes.

former law student said...

Because it doesn't satisfy the rule of the clause, and it's the rule - the text and what it fairly imports - that is binding, not the framers' intent.

Original meaning, not original intent. Let us construct the meaning from the words present and missing. (Nemo aliquam partem recte intelligere potest antequam totum perlegit.)

1. Being a sitting Senator or Representative was not in itself a bar to being appointed to the Cabinet.
2. Voting for a pay raise for a Cabinet position was no bar to being appointed to it: Newly confirmed Cabinet members could accept increased salaries that they had voted for as Senator or Representative the month before, as long as their terms had ended before they were sworn in.

A strict literal reading of the Ineligibility Clause will violate either meaning (1) or meaning (2), as long as the current Congress votes for an increase in salary or perks for the Cabinet office, even out of mischief, to deny the President the officer of his choice. In fact, granting Congress such a power would violate Article II, Section 2, paragraph 2 of the Constitution. (The President shall have Power...)

Therefore the WSJ's reading of the rule is unconstitutional, because it doesn't fit in with the rest of the Constitution. Renouncing any increase in emoluments satisfies the entire Constitution, not just one clause examined in isolation.

Original Mike said...

Seriously, though, this is why I and many others hate (HATE) lawyers.

Yep.

Simon: Do you think the intent of the clause is to keep someone from setting up a cushy job for themselves, do you think it was for some other reason, or do you not care what the intent was?

Simon said...

FLS, I'm a little numb and in some pain from a dentist visit, so perhaps I'm just not firing on all cylinders here, but I have no idea what the argument of your previous comment is. Could you run that past me again in different words?

In particular, I don't understand why your numbered points pose any obstacle to reading the clause to do what it says. As you say, being a sitting Senator isn't a bar to being appointed to the Cabinet - which is why Blake is right to question your point about Hull and Webster. And voting for a pay raise isn't a bar to being appointed to it: Justice Story conceded that the ineligibility clause is a poor fit for its intent in his Commentaries. Neither of these points bear on the matter at issue, as I see it - they simply describe situations not reached by the clause.

former law student said...

The clause never barred all sitting Senators and Congressmen from moving to the Executive Branch, but that is how you are interpreting it, because a COLA statute enacted in 1990 periodically increases Cabinet salaries.

The clause never denied increased emoluments even to Cabinet members who voted for the increase as Senators and Congressmen.

The clause only ever denied increased emoluments to Cabinet members who are current sitting Senators and Congressmen. The Saxbe fix addresses the intersection of current Senator/Congressman and increased emolument perfectly.

Were this not the case, the clause would impermissably violate the separation of powers, by giving Congress the power to block the Presidents' appointments by raising the salary for the office in question, thus making the current Congress ineligible for such offices.

Simon said...

Mike: I'm a textualist, so I don't care what the intent was when the text is clear. In my view, the same basic ground rules apply to constitutional interpretation as do to statutory construction: it was the text that was ratified, and "[u]nenacted intentions or wishes cannot be given effect as law." Hart & Sacks, The Legal Process 1375 (Eskridge & Frickey eds. 1994). Accord, e.g. Scalia, a Matter of Interpretation 17 (1997) ("It is the Law that governs, not the intent of the lawgiver ... Men may intend what they will; but it is only the laws that they enact which bind us"); Bork, The Tempting of America 144 (1990); State ex rel. Kalal v. Circuit Court, 681 N.W. 2d 110 (Wis. 2004) (per Sykes, J.).

To be sure, when the text is ambiguous, when other tools of textual analysis fail, when there is no clear authoritative precedent, then, ceteris paribus, I agree that we should determine the purpose of the text as it would have been understood at the time it was enacted, and prefer a construction that achieves its purposes over one that frustrates them, to the extent consistent with the text. See Hart & Sacks, supra, at 1169; Kalal, supra.

Purposive inquiries can be valuable to the extent that they shed light on the text, but they can't be used as an end-run around it. For example,
I have used a purposive argument in this selfsame controversy
, demonstrating that the argument that Clinton can cure her ineligibility by resignation is flawed whether one looks at the text or its purpose. Here, however, the text is not ambiguous, as I explained in my previous comment. Ambiguity can't be created by violating accepted rules of construction, such as treating words as surplusage. As I said in my reply to FLS above, Justice Story acknowledged in 2 Commentaries § 864 that the clause is a poor fit for its purposes: in some ways, Story observed, it's underinclusive, and in other ways, I would add, it is overinclusive. But overinclusivity isn't ambiguity, either.

Joe said...

Oddly enough, you highlight one of the problems with congress. Passing laws to automatically increase the cost of living for office holders is a sneaky way to avoid actually debating the issue. Congress punts issues all the time and then whines when things don't work out how they "intended." (Except it usually does since the actual intention is to avoid having a known stance on a policy in question.)

Original Mike said...

Thanks for taking the time to answer, Simon. Normally, I would not support wide ranging efforts to determine intent, since these can be twisted to match partisan goals. In this case, however, as you say yourself, "It takes no great subtlety to reconstruct the purpose and intent of the clause" and that's enough for me.

Simon said...

former law student said...
"The clause never barred all sitting Senators and Congressmen from moving to the Executive Branch, but that is how you are interpreting it, because a COLA statute enacted in 1990 periodically increases Cabinet salaries."

A COLA increase should generally be viewed as an increase in the emoluments of the office, because as I said above, "emoluments" must have a broader meaning than "salary." Whether an automatic increase would qualify - or, more precisely, when it would be said to accrue (that is, would the increase be considered to take place at the time the decision was made that it would increase? When the money was actually disbursed? Both? Neither, and some other time?) - is an interesting question with shades of Ledbetter, but it's beside the point here since the increase in emoluments was ordered by the President in January 2008. That provides a discretionary exercise that undoubtedly triggers the clause, absent some kind of nondelegation claim against the President's authority to do so.

"The clause never barred all sitting Senators and Congressmen from moving to the Executive Branch ... The clause never denied increased emoluments even to Cabinet members who voted for the increase as Senators and Congressmen."

We agree on all this, but I fail to see how it is an argument against the obvious import of the clause.

"The clause only ever denied increased emoluments to Cabinet members who are current sitting Senators and Congressmen."

Even that's too broad a description of the clause's rule: The clause only ever denied increased emoluments to Cabinet members who are current sitting Senators and Congressmen for the duration of the most recent term to which they were elected. I'm with Justice Story, which is a pretty good place to be: the clause is a bad fit for its purposes. It is both underinclusive in some ways and overinclusive in others.

I take it that you agree with Story and I that the clause's text is not a perfect fit for the purposes that animated it. That leaves you stuck, does it not, the untenable position that we should shear off the applications of the Constitution's text when the textual rule goes beyond its animating purpose and what we infer to be the intentions of the framers. That's an astonishing argument: there goes, for example, the entirety of the court's equal protection jurisprudence outside of the narrow context of race.

"The Saxbe fix addresses the intersection of current Senator/Congressman and increased emolument perfectly."

No, it doesn't, unless you do precisely what Justices Scalia, Brennan, Marshall, Stevens, Souter, Ginsburg and Breyer have condemned in the Craig and Gonzalez-Lopez cases, supra: abstracting from the rule to the reason, and discarding the rule so long as the reason is satisfied.

"Were this not the case, the clause would impermissably violate the separation of powers, by giving Congress the power to block the Presidents' appointments by raising the salary for the office in question, thus making the current Congress ineligible for such offices."

That might or might not be true but for the presentment clause. At least until Presidential assent for Congressional action is stripped from the Constitution, however (it, too, is doubtless inconvenient at times, see Paulson, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907, 914 (1994), but of course, convenience is not the touchstone of Constitutional law, e.g. INS v. Chadha, 462 U.S. 919, 944, 959 (1983)), this argument has no force at all.

Simon said...

Mike, the Supreme Court allows leeway to read a text narrowly rather than literally when the latter "would thwart the obvious purpose" of a provision. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982) (quoting cases). I can't agree that Knox-Saxbe fits into that box, however, for two reasons:

(1) Knox-Saxbe isn't a narrow reading of the text. It prunes the text: narrowing what it says is not not reading what it says narrowly. Eliminating words goes beyond even the rule of lenity, the zenith of strict construction, it seems to me.

(2) Let us suppose that the Saxbe fix could fairly be called a narrow reading. And let us further suppose that that my reading, by contrast could be called a "literal" one (I think that's a pejorative term, and I don't think that's what I'm doing; I think I'm simply construing it reasonably, giving it the meaning that its text fairly contains and conveys, see Scalia, supra, at 23). That is, the Saxbe fix meets Griffin's threshold requirement. Even with the threshold question stipulated, I would still think Knox-Saxbe fails the test. Perhaps there are good arguments against reading the clause so as to exclude members of Congress from a broader rather than narrower class of offices, it cannot be said that it thwarts the purpose of the clause to do so.

The irony here is that you don't particularly like Clinton but think she's eligible, whereas I have a soft spot for her and think she's ineligible. Indeed, I would have far preferred her as President rather than Obama, and since we will be stuck with a liberal foreign policy no matter who is Secretary of State, it would seem to follow that there is no one I would rather have in that role than Clinton. Nevertheless, the Constitution comes before party, it comes before policy preference, and, yes, it comes before my proclivity for hot bitches in positions of power. If nothing else, no one can accuse either of us of hiding our political opinion of the Clinton appointment behind Constitutional arguments!

former law student said...

That might or might not be true but for the presentment clause.

OK, then it only applies to Senators, when a new President has been elected but has yet to take office. A Republican-controlled Congress could pass a pay raise bill; Bush could sign it and make two-thirds of the Senate ineligible.

Skyler said...

Ok, I'm studying for finals and don't have time to read all the comments, so maybe this has been mentioned already.

The only way that Hillary's nomination makes any sense to me at all is if Obama induces her to resign her senate seat and then decides to bring up the emoluments barrier to posting her as secretary of state.

It would be a very vindictive way to use her power lust to completely remove her from all government power.

I hope it's true, but I know that it would be expecting too much.

Simon said...

former law student said...
"A Republican-controlled Congress could pass a pay raise bill; Bush could sign it and make two-thirds of the Senate ineligible."

Quite so. Indeed, depending on where the authority for this executive order came from, it would appear that a second-term President can unilaterally render a significant percentage of the Senate ineligible for appointment to a given office by their successor. I don't see how that violates the separation of powers, and I don't see why it's a result so patently absurd as to foreclose a reading that would allow it. It may be dirty politics, but the Constitution allows for dirty politics (Rutan and County of Umbehr notwithstanding). The Constitution permits a wide range of really dumb behavior.

Simon said...

Skyler said...
"Ok, I'm studying for finals"

Good luck! :)

blake said...

Maybe the purpose behind the law wasn't just to restrict pols from increasing the goodies from a position that they planned to occupy later.

Maybe the purpose was also to limit the pool of jobs lifetime pols could move around in. Why is it the cabinet has to come from the Congress, or rather, why is that such an onerous restriction that we have to consider ignoring the black-letter text of the Constitution?

Why not just avoid anyone who has a possible taint, and let the law stand.

What's next? Arnold Schwarzenegger for President?

Methadras said...

The Constitution for the average moron has been rendered useless and only because they 'feel' that they have a right to everything anyway. It's about what they perceive as rights vs. their ability to articulate entitlement. Both of which are wrong to begin with and secondly because it's Leftists and their ilk that promote this nonsensical fallacy to begin with.