Obama v. Constitution

Today, December 1, 2008, President-Elect Barack Obama has officially asked Sen. Hillary Clinton to be his Secretary of State and Sen. Clinton has accepted the appointment pending a successful Senate confirmation hearing.

This is strangely interesting development since Obama has violated the US Constitution by appointing Sen. Clinton as Secretary of State and Sen. Clinton has violated the US Constitution by accepting the position.

Sadly for the principals involved, The second clause of Article 1, Section 6 of the US Constitution forbids Sen. Clinton from being appointed to the office of Secretary of State or any other civil office.

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 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.

— US Constitution
Article 1, Section 6, Clause 2

During the course of Sen. Clinton’s current term in the Senate, the salary for Cabinet officers was increased from $186,600 to $191,300. Said salaries are scheduled to yet again be raised in January 2009. This means that not only Hillary Clinton but all sitting Senate members could or should be considered constitutionally ineligible to serve in Obama’s Cabinet.

This seems a telling faux pas on Obama’s part since he used to practice constitutional law. 😉

Of course Obama is not the first one to run afoul of Article 1, Section 6 of our constitution. Presidents Taft, Nixon, Carter, and H.W. Bush had the same problem when they tried to appoint Cabinet members who were serving in the House or Senate.

They all also weaseled their way around the constitutional strictures by having the appointees’ respective salaries reduced to the levels they had been before their appointees had served in office. This was a move that may have honored the spirit of our Constitution, but clearly violated it’s written mandate.

Let’s put this in perspective though, since there’s some chance that this will become an issue in the blogosphere – if not the Obama-adoring MSM. Obama’s appointment of Sen. Clinton as his Secretary of State is a Constitutional Crisis, but it one we as a nation have dealt with before – far more than once.

This issue may, however, be a harbinger of how Obama will approach the Constitution while President, and may shed some light on how Obama has approached constitutional law in the past.

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5 Responses to “Obama v. Constitution”

  1. Sisyphus Fragment Says:

    Sen. Obama is not the President therefore your argument is moot. Sen. Clinton has not actually been appointed to anything yet. I find it incredibly likely that by the time this Article would actually have legal grounds, she will have resigned her seat in the Senate. Until then, I rest my case.

    When it comes to legal arguments it’s all about semantics.

  2. jonolan Says:

    Actually, the constitutional issue is in HRC’s appointment, not whether or not Obama is currently POTUS; she would take up office on the same day Obama did. It also doesn’t matter whether she resigns her Seat or not. Article Article 1, Section 6, Clause 2 is quite explicit and ALL legislators have to resign their current positions before accepting Cabinet posts.

    Obama will sidestep the US Constitution in exactly the same manner that the past Presidents have – unless the Senate refuses to confirm Hillary because of this, which is beyond doubtful.

    The purpose of my post was to put the issue in perspective. What Obama and Hillary are doing is wrong, but not unusual in any way. This is not some catastrophe, as some have already tried to make it out to be.

  3. wayne Says:

    There’s precedent for this, dating back to 1909.

    Its called the Saxbe Fix

    http://en.wikipedia.org/wiki/Saxbe_fix

  4. jonolan Says:

    Yes there is 😉 While I didn’t reference it as such, that is the nomenclature for how previous Presidents have “weaseled their way around the constitutional strictures by having the appointees respective salaries reduced to the levels they had been before their appointees had served in office.”

    As I said, this is a crisis of sorts – but not one that US isn’t used to dealing with.

  5. Random Linkage « Prudence Ponder Says:

    […] nomination of Clinton is a “harbinger of how Obama will approach the Constitution while President.” Say it ain’t […]

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