Secretary of State Clinton Unconstitutional?

Is it unconstitutional for Hillary Clinton to become Secretary of State? According to Article I Section IV she is precluded from being appointed to any 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.”

During Hillary’s term in the senate the Cabinet’s salary went from $186,600 to $196,700. Bush did so through an executive order. Which some have argued will not affect or bar senators or representatives because they did not vote on it.

Similar situations have happened in the past. In the past the way around it is to have Congress vote to lower the pay to what it had been before, this is known as the Saxby fix. It is named after William Saxby who was appointed Attorney General by Nixon, but Congress had to vote to lower his pay to its previous level. Its roots reach back to 1909 during the Taft administration with the appointment of Knox to Secretary of State. The Senate Judiciary Committee came up with the idea of setting the salary to what it previously had been. It was unanimously passed by the Senate, but faced some trouble in the House where it was once defeated. Clinton also used it when appointing Lloyd Bensten to Treasury of Secretary.

Since the beginning the constitutionality of the Saxby Fix has been questioned since. The actual language of the prohibition is precise and does not allow for any exceptions. The fix seems to solve the problem without addressing the constitutional issue. The addition of a time ban was considered during the Constitutional Convention but was never added. Under the Reagan administration it was not deemed an adequate solution. This was for the appointment of Hatch to the Supreme Court. The US Assistant Attorney General Cooper deemed that the Saxby Fix did not meet constitutional requirements.

In December 2008 the Senate passed Joint Resolution 46 which provided for decreasing the Secretary of State salary to its previous level. Which is effectively a Saxby fix for Hillary. However, groups have already said they will contest the matter in the courts.

Such a case would be very similar to the case that was dismissed, to make Obama produce his birth certificate. The issue is who would have standing to bring such issues to court? The court’s answer, no one. Which seems absurd and one would think any citizen of the United States should have standing.

Standing is used to determine if a person has the ability and required personal interest to bring a case before the federal courts. There are three constitutional requirements that must be met: injury, causation, and redressability. The injury must be real or imminent, this shows that there is a concrete interest in the outcome. The second requirement is causation in fact, which means that there must be a connection between the injury and conduct. The injury must be caused by the defendant and not a third party. Redressability means that the court must be able to remedy the situation, and also that they are likely too.

There are also prudential requirements, judicially created. Congress can override these requirements by statute. These were created to help lighten the case load of the federal courts. The first is that one cannot bring the claims of a third party. However, there are exceptions. Such as the overbreadth doctrine which allows a party to challenge a law on the grounds that it violates a third parties First Amendment rights, there are substantial obstacles to the third party asserting their rights and it is deemed that an advocate would effectively represent them, and if there is a close relationship between the advocate and third party. Secondly is that one cannot sue over a generalized grievance. A common example is that being a taxpayer is not standing to sue. Finally, it must be within the zone of interest which is protected by statute in question.

Basically the courts have used the standing requirement as a convenient way to dismiss cases they do not want to hear or have come to court. If a United States citizen lakes standing to bring a case then who is able to? Any citizen has a direct interest (injury) in who becomes our commander in chief and those who are appointed to his cabinet. As was stated in the Constitution, “we the people”, are supposed to be the ultimate source of authority and act as a check on the government. But the courts have effectively removed one of those avenues. It is just one example of how power is being taken from the people and handled over to the government.

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