So far I’ve seen three legal blogs pick up on Senator Hillary Clinton’s "Emoluments" problem if she’s appointed to serve as Secretary of State: Adam B at DailyKos, Jack Balkin at Balkinzation, and Eugene Volokh at the Volokh Conspiracy. Great work by all three.

The situation is tailor-made for a first-year ConLaw exam. By Executive Order dated January 4, 2008, President Bush enacted cost-of-living adjustments ("COLA") for a wide variety of Executive Branch employees, including members of the uniformed service, judges and justices, administrative law judges, the employees of Veterans Affairs and, importantly, the Cabinet.

The latter is the problem for Clinton, who on January 4, 2008, was in the middle of a Senate term set to end in 2012. Article 1, Section 6, Clause 2 of the United States Constitution states:

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 encreased 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.

[sic for "encreased"]. Andrew Malcolm at the LATimes reads this clause, shall we say, strictly:

We’re not lawyers. But we do speak English. And to our eyes that constitutional clause doesn’t say anything about getting around the provision by reducing or not benefiting from the increase of said "Emoluments."

It flat-out prohibits taking the civil office if the pay has been increased during the would-be appointee’s elected term. Period. Which it has.

It depends on what you mean by "English," "reducing" and "increased."

Starting with "English," as Chief Justice John Marshall wrote (while interpreting another separation of powers issue under Article I) "we must never forget that it is a constitution we are expounding." McCulloch v. Maryland, 17 U.S. 316, 407 (1819). It’s not a dinner menu; everything must be interpreted in context, with an eye to the multiple balances of powers and interests reflected by the Constitution’s text as well as past interpretations and future consequences.

Moving on to "reducing," there’s nothing wrong with a Constitutional "fix;" indeed, there’s every reason to believe that’s just as the Framers, who themselves drafted a compromise document, would want. Reducing salary is also how we fixed the issues arising from this clause three times in the past, like with the "Saxbe fix," named after Nixon’s last Attorney General, for whom the Congress specifically reduced his pay back to where it was prior to his term in the Senate. (You can see the notes to 5 U.S.C. 5312 littered with all three prior "Compensation and Emoluments" fixes). If Obama wanted to "fix" this situation by rescinding the COLA adjustments for the Secretary of State, that would fit within the purposes of the clause, as described below.

As for "increased," that’s not nearly as clear as Malcolm believes, because of the complexities of government. Bush’s Executive Order did not arbitrarily increase emoluments — instead, the Order merely published the new numbers required on an annual basis by a statute most recently amended in 1990. See notes to 5 U.S.C. 5303. The "increase" for Constitutional purposes thus arguably occurred back in 1990; Bush did nothing more than carry the existing numbers through the method established there, hardly the same thing as a deliberate increase in salary.

In sum, there’s a strong argument that’s there is no emoluments problem — the emoluments at issue here were increased in 1990, long before Clinton’s term.

Let’s go back to the purposes of the clause itself.

The Founders’ Constitution has all the primary sources you could want. In short, the clause was enacted to prevent legislators from creating officers (or making them more lucrative) and then appointing themselves (or forcing the Executive to appoint them), a form of above-board corruption that had been prevalent in the British Parliament and in the Virginia Legislature. Some of the Constitutional Convention, like George Mason, wanted a complete bar on members of the Legislature serving in the Executive Branch, while others, like Rufus King, felt any such prohibition would be "chimerical" and would prevent talented, qualified leaders from proper service. As with many issues, James Madison proposed a compromised which carried the day.

The situation with Senator Clinton seems to have proved Rufus King right. Over the past few years there have been no limits to the revolving-door, back-scratching system in which members of Congress routinely engaged in direct and indirect self-dealing against the public interest. Many of those not taking money explicitly (like Rep. Cunningham and Sen. Stevens) are nonetheless more than happy to spend the public’s money on special interests to secure lucrative jobs for themselves after their time in Congress. Adding insult to injury, there’s no suggestion that Senator Clinton’s rumored appointment would be part of a self-patronage maneuver to enrich her or anyone else. Indeed, she never voted on the increase, as it was an executive order, and not even one designed to increase salaries, just to keep pace with inflation and generalized costs.

The emoluments clause thus is the "chimera" warned of at the Constitutional Convention that has done nothing to thwart corruption in generations (perhaps ever) and has now, for the fourth time, impeded the appointment of a qualified candidate who indisputably did not seek or take the job for pecuniary reasons. Yet, the language is still there in our Constitution and we must not disregard it out of political convenience — few actions are worse for our democracy than establishing or condoning a disregard for the Constitution.

Which is why, the above analysis notwithstanding, I think on January 20, 2008, then-President Obama should reverse the Executive Order as it pertains to the Secretary of State and then appoint Senator Clinton. It wouldn’t surprise me if he did exactly that; if he didn’t want to spend political capital and attention dealing with Sen. Lieberman or Sec. Gates, I doubt he’d want to do it over a couple thousand dollars of Hillary Clinton’s salary.