Whether Hillary or some other yahoo is SecState matters not to me (seeing as how we are gonna get a terrible SecState either way) but the fact that Obama, a former lecturer on Constitutional Law, seems willing to ignore the Constitution is troubling, but not surprising in the least.
The section he will ignore wholesale in the appointment of Hillary is the Constitutional prohibition in the Emoluments Clause (Article I, Section 6, clause 2):
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.
In a nutshell this means Congress cannot take an appointment for which the pay has gone up during the time that person held office in Congress. The pay for the Secretary of State has gone up in the last year that which would prevent Hillary from getting appointed.
But Taft, Nixon, Carter, and Clinton all ignored the Constitution. They did it by lowering the pay after the fact. One of the Democrats favorite former KKK member, Robert Byrd, didn’t like this tactic in 1973 and said this:
we should not delude the American people into thinking a way can be found around the constitutional obstacle
But now that its the Democrats in power, and wanting Hillary in the SecState spot it’s all good.
Professor Volokh quoted Prof. Michael Stokes Paulsen, author of Is Lloyd Bentsen Unconstitutional?, in his post on the subject:
A “fix” can rescind the salary, but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls.
Unless one views the Constitution’s rules as rules that may be dispensed with when inconvenient; or as not really stating rules at all (but “standards” or “principles” to be viewed at more-convenient levels of generality); or as not applicable where a lawsuit might not be brought; or as not applicable to Democratic administrations, then the plain linguistic meaning of this chunk of constitutional text forbids the appointment of Hillary Clinton as Secretary of State.
I wouldn’t bet on this actually preventing the appointment, however. It didn’t stop Lloyd Bentsen from becoming Secretary of State. But it does make an interesting first test of how serious Barack Obama will be about taking the Constitution’s actual words seriously. We know he thinks the Constitution should be viewed as authorizing judicial redistribution of wealth. But we don’t know what he thinks about provisions of the Constitution that do not need to be invented, but are actually there in the document.
You think the Democrats will stand firm against this tactic, as they did in 1973?
I highly doubt it seeing how much hypocrisy we have seen come from the left side of the aisle.
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