Is Hillary Clinton Unconstitutional?

Larry Tribe

Past Presidents have confronted this very problem on numerous occasions, as with the appointment of Senator Philander Knox as Secretary of State by President Taft in 1909, the appointment of Senator William Saxbe as Attorney General by President Nixon in 1973, the appointment of Senator Edmund Muskie as Secretary of State by President Carter in 1980, and the appointment of Senator Lloyd Bentsen as Secretary of the Treasury by President Clinton in 1993. In each instance, the constitutional "fix" for what would otherwise have been an insurmountable Emoluments Clause obstacle took the form of a congressional repeal of the pay raise for the Cabinet office in question, restoring the "emoluments" for that office to the level that had obtained prior to the election of the relevant Senator.

The technique has unfortunately come to be known as the "Saxbe fix" by virtue of its hotly-debated use by President Richard M. Nixon to put his friend William Saxbe of Ohio in the Attorney General's seat during the Watergate scandal. I say "unfortunately" because the cultural and political hangover of that scandal can all too easily rub off on the mechanism identified by this name. Even the word "fix" carries a needlessly pejorative taint. Nor does the provenance of this device avoid casting a shadow over its validity. Robert Bork, an otherwise distinguished former Yale Law School professor and D.C. Circuit Court judge and a Supreme Court nominee whose path to that post was obstructed in no small part by his role in the infamous Saturday Night Massacre, was serving as Acting Attorney General at the time of the Saxbe nomination. He defended the proposed "Saxbe fix" by invoking historical precedent and focusing on the anti-self-dealing aims of the constitutional prohibition in question, aims that he argued were amply satisfied once the salary of the relevant office had been rolled back by statute.

The principal opponents of Judge Bork's constitutional position were Senator Robert Byrd, New York Times editorialist Anthony Lewis, and then-professor Stephen G. Breyer. As matters unfolded, the legislation reducing the salary of the Attorney General's office to which Saxbe aspired passed with but ten dissenting votes, the dissenters resting entirely on the Constitution. Although the statute Congress enacted contained an expedited judicial review provision, it was never challenged in court; indeed, no such challenge has ever been launched, and none is likely to be.

It appears that every presidential administration after that of Richard Nixon has deemed the Saxbe fix sufficient with the sole exception of the Reagan administration. President Reagan's Department of Justice, in a still-unreleased OLC opinion, concluded that nominating Senator Orin Hatch to the Supreme Court vacancy created by Justice Powell's resignation would be unconstitutional even if the salary of the office were to be reduced. The seat that might otherwise have gone to Senator Hatch instead went to Justice Anthony M. Kennedy, and the rest, as they say, is history.

I find myself in the curious position of agreeing, at least in result, with the opinion of then Acting Attorney General Robert Bork on this matter and disagreeing with the opinion of my then colleague and friend (and now Justice) Stephen G. Breyer and my friend Tony Lewis . The reason, quite simply, is that the text of the Emoluments Clause, while capable of a reading that would make salary increases incurable by rollbacks of the sort historically employed to address the difficulty, does not demand that reading either as a linguistic matter or as an historical matter, much less as a functional matter.

Linguistically, the reference to any civil office "the Emoluments whereof shall have been encreased" during the time for which the appointed lawmaker was elected need not be understood as encompassing every office for which the statutory salary had at one time been increased even though a subsequent enactment, signed into law before the contested appointment takes effect, has negated that increase. The fact that the clause uses the past participle, "have been encreased," hardly means that its backward-looking focus cannot take into account downward salary movements that fully negate earlier increases.

Then-Professor Stephen Breyer, in his Nov. 28, 1973 letter to Senator Robert Byrd, conceded that he was not offering "an expert opinion" and had "not researched the question" but, with that proviso, nonetheless opined that any pay raise enacted for a given office by Congress would automatically signal an augmentation of the status and prestige attached to the office in question -- an augmentation that undoing the pay raise could not negate, given the odds that a future Congress would restore the increased salary of the office once the new appointee had departed. Because "there seems no way that the present Congress could disable the future Congress from voting the pay increase," Breyer argued in his letter, rescinding a prior pay increase cannot suffice. The analysis has an ingenuity characteristic of Justice Breyer, but it seems to me to have more ingenuity than force. The focus of the Clause is on tangible emoluments, not on intangible prestige. To reason as Breyer did in his letter is to make salary increases irreversible for purposes of appointing members of Congress to positions in the Executive Branch even when an office for which the salary has at one point been increased is later demoted in significance and compensation for reasons wholly unrelated to the desire to appoint a particular Senator or Representative -- a consequence that seems to me to transmute time's arrow from a principle of thermodynamics into an iron rule of politics.

Omar Khayam's "moving finger" that "writes and, having writ, moves on," need not control our reading of what I continue to regard as genuinely ambiguous constitutional text. The contrary argument, most fully developed in John O'Connor, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89 (1995), makes a perfectly decent grammatical case for its position but is anything but dispositive. Nor is O'Connor's further argument -- to the effect that the Saxbe fix undermines a secondary purpose of the Emoluments Clause (to wit: its purpose to "limit[] the size, importance, and reach of the federal bureaucracy") -- at all persuasive, although it certainly merits consideration. Where, as in this instance, the indisputably primary purpose of the Clause (to wit: its anti-corruption, anti-self-dealing purpose) points to what has become the historically conventional reading, only constitutional perversity would be advanced by treating the Emoluments Clause as an insurmountable bar to the Clinton appointment.

To be sure, early practice under the Constitution was less forgiving on this score. President George Washington withdrew the nomination of William Patterson of New Jersey to be an associate justice of the Supreme Court because Patterson had been a Senator at the time the office was created. And an 1882 Attorney General opinion held that former Senator Kirkwood could not be appointed to a tariff commission established during the term for which he had been elected to the Senate. Attorney General Brewster wrote: "It is unnecessary to consider the question of the policy which occasioned this constitutional prohibition. I must be controlled exclusively by the positive terms of the provision of the Constitution." He deemed the language to be "precise and clear," making the "rule . . . absolute, as expressed in the terms of the Constitution." But that approach to constitutional exegesis, which proceeds on the premise that language may be ripped from its purposes even in a transparently purposive document and which treats as "clear" that which a bit of worry readily exposes as anything but, seems to me profoundly antithetical to the hoary maxim that it is, after all, "a constitution we are expounding." That maxim, I hasten to add, is no less applicable to the visible constitutional text than it is to what I have called the "invisible" Constitution, the Constitution about which we may reason but whose words we cannot find in the document.

Somewhat troublesome for the point of view I espouse here is the absence of any constitutional proviso for annulling what would otherwise be a violation of the Emoluments Clause by decreasing a salary hike at some later time. Not all constitutional silences speak loudly, but this one at least whispers a word of caution, given other constitutional provisions that expressly allow waivers or fixes for limits on office-holding. For example, Article I, Sec.9, Cl.8, providing that "no Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State," includes within its text the escape clause referring to congressional consent. And the Fourteenth Amendment, Sec.3, prohibiting officeholding by anyone who ever "engaged in insurrection or rebellion" against the United States or gave "aid or comfort to the enemies thereof," concludes with its own escape clause: "But Congress may by a vote of two-thirds of each House, remove such disability." One could certainly argue that the absence of any similar escape clause renders the "Saxbe fix" extra-constitutional. But the central aim of the Emoluments Clause -- to limit opportunities for self-dealing -- would make the kind of escape clause required here singularly peculiar. Such a clause would presumably have taken the form of language adding to the words "shall have been encreased during such time" the words "unless said Emoluments shall subsequently have been decreased by at least an equivalent amount," a proviso quite different in structure and purpose from those referenced above. Thus this is not one of those instances in which the sounds of silence speak with sufficient clarity to overcome the thrust of a purposive analysis.

I am, finally, influenced by the fact that the salary increase at issue here was created not by any enactment for which Senator Clinton voted or on which she had any opportunity to vote. Rather, that increase was created by a statute enacted well before Hillary Clinton was elected to the Senate. My understanding is that the 1990s cost-of-living statute in question, 5 U.S.C. Sec. 5303, automatically increases the salaries for a number of federal offices, including that of Secretary of State, provided the President does not certify that the increase would be inappropriate. That an Executive Order issued in January 2008 failed to make a finding of inappropriateness hardly makes it the case that the Secretary of State's salary was "encreased" this year -- only that an all-but-automatic increase put in place before Senator Clinton arrived on the scene was permitted to go into effect. The focus of the Emoluments Clause, as indicated by its parallel reference to "any civil Office . . . which shall have been created," is to the creative exercise of affirmative governmental authority during the period in question. The absence of any reference in the Clause to which particular agent acted to cause the increase may well mean that it would be no defense to an otherwise good Emoluments Clause objection that the Senator in question had not voted on, or had even voted against, the measure that operated to increase the salary of the office to which that Senator aspired. But that absence of a reference to agency should not, I submit, be construed to make it a matter of indifference that the relevant decision was plainly taken before the "Time for which [Senator Clinton] was elected" and not "during [that] Time."

My conclusion is, therefore, that Secretary of State Hillary Clinton would not be unconstitutional. Cf. Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907 (1994).

Laurence H. Tribe

Labels: Is Hillary Clinton Unconstitutional?