The Sexy 'Emoluments Clause' of the Constitution [Why Hillary Clinton Will Be Forced to Accept a Pay Cut as Secretary of State]

President-elect Barrack Obama has nominated Senator Hillary Clinton as his Secretary of State when he takes office. Assuming that she is confirmed by the Senate, she will give up her Senate seat and accept her new position.

However, there is another hurdle that must be overcome before she can take the Secretary of State's office.

Article I, Section 6 of the U.S. 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 increased during such time."

The word "Emoluments" is a reference to salary or compensation. Legal experts refer to this clause in Article I, Section 6 of the Constitution as the "Emoluments Clause".

What does the Emoluments Clause mean?

During the term that a Congressperson was elected to serve in, they cannot be appointed to any other federal office if the office was either created during that time, or its salary has been increased during that time. This prohibition applies even if a Congressperson steps down from their seat in the House or Senate.

Why does the Constitution include the Emoluments Clause?

Our Founding Fathers felt it was needed in order to preserve the separation of powers between the Executive and Legislative branches, and also to guard against potential corruption and conflicts of interest.

You don't want a system where a Congressperson can vote to help create a new Executive office, or increase its salary, when they know that they will soon be appointed to that same post. If they could, then they would simply create new jobs for themselves when the end of their terms draw near and they fear that they won’t be re-elected. This could potentially tempt them to sell their votes for future favors (telling the President, "I'll vote for bill X if you agree to appoint me to this cushy new job that I will help create at the end of the year.") The Emoluments Clause makes this scenario more difficult to carry out.

How does this apply to Hillary Clinton's case?

Hillary Clinton won re-election for her second term as U.S. Senator for New York in 2006. A Senate term lasts 6 years, so Clinton's term will expire in January 2013.

Under the Emoluments Clause, she would be prevented from accepting any position in the Executive branch that was created between her election in 2006 and January 2013. She would also be prevented from accepting positions whose salaries where increased during that same timeframe.

Congress passed a law in the 1990's that allows the President to grant basic cost-of-living salary increases to various offices based on Executive Order. Under the terms of the original law itself, the President doesn't need an additional vote by Congress to approve these cost-of-living increases.

In January 2008, President Bush signed an Executive Order giving all of Cabinet Secretaries a cost-of-living salary increase. Annual salaries for Cabinet members went from $186,600 to $191,300 - including that for Secretary of State.

Since this latest salary increase happened during Hillary Clinton's Senate term, the Emolument's Clause generally prevents her from taking the Secretary of State's job unless she waits until her Senate term ends in 2013.

Are there any other options for Hillary Clinton?

Yes. Congress can simply repeal all the raises that were given to the Secretary of State's office during Hillary Clinton's latest term as Senator. This would allow her to get around the Emoluments Clause and allow her to assume that office. The Senate has voted to do so in Clinton’s case in order to get around the Constitutional hurdle.

Some argue that a raise remains a constitutional problem – even after it gets rolled back

There is a minority viewpoint that suggests that Clinton would not be allowed to take the office even if its recent salary raises are repealed. Some argue that the text of the Constitution states that the Emoluments Clause prevents anyone in Congress from taking over other federal posts during their term when the salaries "have been increased" - regardless if such salaries are later lowered back to their original amounts.

Under this legal theory, it isn't the actual monetary increase in salary that would prevent a current Senator from taking the post, but rather the historical event of an increase that prevents it. A salary raise can be repealed, but you can't repeal a historical event. If you argue that the very historical event of a raise prevents current people in Congress from taking the position to which the raise was applied to, then it can't be undone. Such people would have to wait until their current Congressional term expires.

This theory has never been fully tested in federal court, but there have been many past examples of Congress repealing raises in Executive posts in order for their members to transition into these offices. The first time was during the Presidency of William Howard Taft in 1909. Taft picked Pennsylvania Senator Philander C. Knox to become Secretary of State after the salary for the position had recently been raised. The Senate fixed the problem by unanimously approving a salary rollback – thus avoiding a Constitutional issue with the Emoluments Clause.

Presidents Jimmy Carter and Bill Clinton also faced similar situations and had to ask Congress to roll back the salaries of Cabinet members so that Senators could take new positions within the executive branch after raises had been granted during their Senate terms.

President Nixon had to ask Congress to reduce the salary of the U.S. Attorney General from $60,000 to $35,000 in 1973 in order for Senator William Saxbe to be appointed to the position.
After this instance, reducing government salaries in order to avoid the Emoluments Clause became popularly known as a "Saxbe fix".

The "Saxbe fix" has now been used several times as a successful end-run around any problems with the Emoluments Clause. Nobody has ever successfully challenged its validity in court. However, a few legal commentators continue to argue that the "Saxbe fix" is still unconstitutional. They claim that Congress members should be ineligible for appointment to other offices that have had recent raises during their terms in office – even if their salaries are subsequently lowered.

Supreme Court Justice Steven Breyer previously endorsed this theory back when he was a Harvard Law Professor during Nixon's Presidency). He argued that Nixon's attempt to repeal the Attorney General's salary increase still prevented Senator Saxbe from taking that office during his term. Senator Robert Byrd also endorsed this argument.

During President Regan's administration, an assistant Attorney General argued that repealing recent salary increases for Supreme Court Justices would still make sitting Senators ineligible for any openings on the bench due to the Constitutional restrictions of the Emoluments Clause.

Thus far however, no court has agreed with this interpretation. Congresses has continued to repeal raises in order to allow their members to take other government positions during their terms in office. Hillary Clinton will likely be allowed to become Secretary of State after she is confirmed by her fellow Senators, but she will have to take a pay cut relative to other Cabinet officials in order to do so.


[Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article.]