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Senate Prepares Legal Remedy For Clinton Nomination

Manu Raju reporting for The Crypt:

Hillary Clinton's nomination of Secretary of State has resurrected an obscure constitutional clause that prohibits members of Congress from being appointed to positions that saw a wage increase during that lawmaker's tenure.

But Democrats are readying legislation that could be acted on as soon as next week to pave the way for the New York Democrat's confirmation in Barack Obama's Cabinet.

Clinton's office says this issue has been resolved numerous times in the past and that all parties were aware of it in advance of her being announced this week as Obama's choice for the nation's top diplomat. For those of you who haven't been following this arcane constitutional challenge, "emoluments" is the operative constitutional word here, and it means payments arising from holding an office.

A source close to the transition has provided a series of legal points, which could serve as the basis of a legislative proposal in the Senate. Here's what the source sent The Crypt:

· The Ineligibility Clause of the Constitution (article 1, section 6, clause 2) provides:
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.

· This provision does not prohibit the appointment of Senator Clinton as Secretary of State.

· Historical practice and Department of Justice interpretation have in fact permitted appointments of members of Congress to such offices so long as their salaries are based on the levels set before the relevant term of office.

· This longstanding practice—which dates back at least 100 years to President Taft's appointment of Philander Knox to be Secretary of State—is often referred to as the "Saxbe Fix," referring to the arrangement whereby Congress set the salary for President Nixon's nominee for Attorney General William Saxbe so it would reflect the salary level in place before his congressional term of office.

· Other cabinet officials appointed under such an arrangement include Secretary of State Edmund Muskie and Secretary of the Treasury Lloyd Bentsen.

· As constitutional scholar Ron Rotunda has explained, as a matter of historical practice, Congress has interpreted the ineligibility imposed by this clause as nonabsolute; that is, a Senator (or Representative) could be appointed to an office although the emoluments had been increased during the term for which the Senator (or Representative) had been elected to Congress, if the increase were rescinded.

· This interpretation fully satisfies the concerns motivating this constitutional restriction, by removing any risk of self-dealing.

· So long as Congress agrees to set the salary for the Secretary of State at levels set before the start of Senator Clinton's current term--which began on January 4, 2007--her appointment will satisfy the Constitution as it has long been interpreted and applied.

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