Don't worry, Hillary, you can still be Secretary of State. The Constitution can be worked around. No one's paying attention.
What's a little matter like the Constitution among friends? That's a question a few legal eagles are asking as they note that Hillary Clinton can't become Secretary of State thanks to something called the Emoluments Clause of the Constitution. Under that clause of Article I, a Member of Congress who has been in office while a pay raise was passed for a federal job may not then be appointed to the job at the higher salary. Mrs. Clinton was a Senator this January when President Bush passed an executive order increasing the Secretary of State's pay to $191,300 from $186,600. As a legal matter, that should disqualify her.
Senate Democrats are hoping to finesse the problem with the so-called "Saxbe fix," whereby the salary raise for Secretary of State would return to its previous level. Democrats point out this was used by Richard Nixon to make Ohio Senator William Saxbe Attorney General, and again for Lloyd Bentsen to become Treasury Secretary in the Clinton Administration.
The Founders wrote the Emoluments Clause to prevent Members from enriching themselves by setting up plum assignments and then maneuvering into the jobs. If Congress is able to ignore language expressly written to curtail its power, the clause is effectively a dead letter. As Ilya Shapiro of the Cato Institute points out, 10 Democratic Senators objected to the Saxbe fix in Mr. Bentsen's case.
To our knowledge, Senator Clinton played no role in the salary raise, and she clearly had grander ambitions than Secretary of State when the law was signed. But while the issue will strike some as trivial, it is no small matter to ignore the Constitution's direct words. Giving Mrs. Clinton a pay cut is a minimum gesture of deference required to the document that Mr. Obama will soon swear an oath to preserve, protect and defend.