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.

The Winds of Change

What do the 1976, 1980, 1992, 2000, and 2008 Presidential elections have in common? In the General Election, the candidates that were most able to position themselves as the candidate of change won the Presidency.

In 1976, there was still the Watergate hangover and Americans were upset with Gerald Ford over the Nixon pardon. Jimmy Carter promised change and won an extremely close election partially due to his use of the misery index. The misery index was created by adding inflation numbers with the unemployment numbers. Carter promised to lower the misery index and bring positive change to the Presidency. Unfortunately for him and the U.S., the only change he brought was for the worse.

In 1980, Ronald Reagan positioned himself as the candidate for positive change. Fortunately for us, he was the real deal. His message and policies of “Peace Through Strength” won the Cold War and changed the world for the better. It was “Morning Again in America”. He was rewarded with a landslide victory in 1984.

1992 was probably the most interesting of these elections because you had two candidates that successfully positioned themselves as the candidates of change, Perot and Clinton. Perot was successful at that because he was simply far different than any candidate the American public had seen in recent memory. Clinton was ultimately successful because he hammered Bush with “It’s the Economy, Stupid”, implying that he would change the emphasis from foreign affairs to the economy, marking a change from the previous administration. Having two candidates for change created insurmountable odds for Bush to overcome. (Bush had won the 1988 election because exhaustion with eight years of Reagan/Bush had not yet completely overtaken the general public and Mike Dukakis ran a horrendous campaign. Public exhaustion clearly existed in 1992 and it cost Bush the election.)

2000 is a little different story, because the true results of the election were muddled as a result of the various TV networks decision to call Florida before the polls actually closed. My thinking is that Bush’s victory would have been significantly larger, because it has been reported that many intending Bush voters went home in the Florida panhandle and in other parts of the country because it seemed that their votes would not matter as Florida, a key state had been one by Gore. Nevertheless, Bush won significantly more states than Gore mostly due to his exploitation of the electorate’s natural desire for change after having the same administration in power for eight years. Part of Bush’s message was an argument for tax cuts and an end to nation building. He also vowed to return dignity to the Oval Office. He won because he marked a departure from the past eight years.

2008 is no different from the rest in that the fact that the Obama won because he positioned himself as the candidate for change and the anti-Bush. He was a fresh face and the average person did not know a whole lot about him, similar to Jimmy Carter. Furthermore, he is now about to become the first Black President of the United States. While he is was Senator, he had not been in Washington long enough to be labeled a Washington insider. 

Those of you who are depressed about this election, take heart. These election results are in line with the march of history. 2010 and 2012 have the potential to be great years for Republicans if we get back to basics and take on the change mantle. We as Republicans need to return to our conservative ways and force our party to innovate. If we are successful, we’ll be fine.