Can Hillary Clinton Serve? (The Pesky Emoluments Clause)
Over at The Volokh Conspiracy there is some discussion of a neat topic that has been the subject of occasional conversation around here, the application of The Emoluments Clause ("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 encreased during such time. . . ) to Hillary Clinton's capacity to serve as Secretary of State, at least until the end of the term to which she was elected. The Constitutional Convention history as well as the subsequent American experience is gathered, along with some observations, by Adam Bonin here. The former site quotes Michael Paulsen's suggestion that the text is clear and that Clinton is barred. The plain language of the Clause certainly seems to bar service. Of the several ways around this hurdle, Professor Paulsen (likes none - but if he must choose he) likes best - though somewhat tongue in cheek I think -- the Constitution's use of the male pronoun, as that allows Clinton to serve without violating the precise text.
There is, to be sure, the problem of standing; there is no cabinet member in-waiting to challenge the appointment and it might be that the Constitution can simply be violated if those constitutional officers who should abide by it (The President, those who confirm the nominee) decline to do so. On such grounds, a President might be elected, and might serve, despite a failure to be of age or to be a citizen. There are some good reasons for standing doctrine, but for those of us who do not live in the world of constitutional law scholarship, those good reasons do not have much to do with this likely failure of law to keep up with apparent violations of it.
For nontextualists, or loose ones, the best argument against legal formalism here is that the point of the Emoluments Clause seems to be, or perhaps must be, a fear of conflicts of interest. That fear can be put aside if the new cabinet member declines to accept the higher salary put into law by the President's signature (note that the Clause does not require that the Senator have voted for the increase). Some suggest that a new law could be passed in order retroactively to return the salary to its pre-Senate-election level. On the face of it, these solutions do not solve the problem presented by the text, they simply eliminate the apparent conflict of interest that is likely behind the text.
I think an even better argument againt too much textualism is that it leads to absurd results. A President on his or her way out (or a hostile Congress) could simply increase salaries of cabinet and other positions - and thus make all continuing members of Congress ineligible for these posts. Textualism is a useful constraint, but it need not cause us to insist on absurdities. This is the main point of the present post.
If we would feel better with an escape method, then another possibility is for the Senator to resign before "appointment." After all the Constitution could have said "no person shall, during the time for which he was elected to the Senate or House, be appointed to any civil office . . . " But instead it says "No Senator or Representative shall, during the time for which he was elected, . . " In that manner, when Clinton is appointed she will be a mere person rather than a Senator and perhaps that will calm our textual nerves. Of course the problem with this method is that it is also absurd, in that it allows an end run around the presumed purpose of the Clause. Even a Senator who pushed through a new civil office or a salary increase in order to enjoy it himself, would be eligible by resigning on the eve of appointment. There is some risk of resignation followed by non-appointment, and that might constrain the strategist, but that also raises the question of contingent resignations, a question best left for the next Supreme Court resignation.