She may be Constitutionally ineligible. Sometimes commenter Jane Bernstein notes via email that Article 1, Section 6 clearly states that:
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.
Emphasis mine. Federal salaries, including the schedule for a Level 1 Cabinet officer (such as Secretary of State) were increased at the beginning of the year, by executive order. IANAL, but by the letter of the law, it would seem that she cannot be appointed to that position.
There are two potential outs.
One is trivial--she isn't a "he," she's a "she," so she could amusingly argue that the section doesn't apply to her. I suspect that this would probably fail on Fourteenth Amendment (and perhaps other) grounds, though, as well as common sense.
The other would be to argue that the intent was to keep Congress from creating or increasing salaries of a position in order to provide a new or better job for one of its members, and to eliminate this potential conflict of interest. Since the increase was done by Executive Order under a previously passed law, she could argue that Congress didn't increase the pay in this instance. However, the letter of the law wouldn't allow this interpretation--it doesn't say anything about the emoluments increasing by act of Congress--it just says that if they increase (for whatever reason) she cannot have the position.
If true, the good news is that it would also apply to John Kerry. And it doesn't apply to Barack Obama, since he wasn't appointed--he was elected.
[Update a few minutes later]
Also, if the logic is correct, it would apply to Rahm Emmanuel, as well as any other potential congressperson or Senator angling for an appointment.
[Update on Monday afternoon]
More thoughts from Eugene Volokh.
[Bumped to the stop]
I think Rahmbo's in the clear, actually. He can be appointed Chief of Staff on 1/20/2009 because his term as a representative expires on 1/3/2009 or something like that. So the rule wouldn't apply, and he won't take the seat for which he was reelected because he'll be at the White House rather than the Capitol.
Interesting but it won't stop anything. The approach in the past has been a Saxbe amendment along the lines of your second solution.
It's amusing reading that servants of the Democrats like the NYT wrote very sanctimoniously about how the constitution was being ignored at the time when Nixon used this approach. Somehow I don't think Hillary will inspire the same outrage. That's just a guess based on the observation that - according to the MSM - the constitution can only be "shredded" when you're not actively looking for loopholes for criminals.
I don't think this affects Rahm Emmanuel because Chief of Staff is not a constitutionally recognized appointed position (someone correct me on this). I don't think the Senate approves this position.
He can be appointed Chief of Staff on 1/20/2009 because his term as a representative expires on 1/3/2009 or something like that. So the rule wouldn't apply, and he won't take the seat for which he was reelected because he'll be at the White House rather than the Capitol.
That's true. So it's only a problem for Senators whose term doesn't expire in January. On the other hand, he was just reelected, right? He would have to resign, and do so before the administration puts in another pay raise in January...
But as Joe points out, it doesn't matter for him anyway, because WH Chief of Staff doesn't meet the criteria.
I expect that there will be some sort of interpretation that she can take the job at the old pay rate. There's no advantage that accrues to the Supreme Court by keeping her out that I can see if she satisfies the spirit of the provision by taking a pay cut and it's not clear who has standing to challenge her appointment.
Also, there may be some sort of technicality if she resigns first. At that point she would not be a Senator and could be interpreted to being ok to appoint. That interpretation might hinge on the intent being to prevent a Senator from accepting an appointment while she can still return the favor by voting for something.
That makes the phrase "time for which he was elected" pretty tenuous ruling out only people who were appointed, then elected, but not yet seated which seems to be against the spirit of the provision. I guess there will be a lot of Constitutional scholars doing homework.
There may also be some attempt to justify that the salaries haven't kept up with inflation.
Ha ha, yeah I don't think so. I feel confident the emoluments would be interpreted has having been created or set or whatnot by Congress, regardless of how and when the Executive implemented them. So Hillary is eligible unless she could've voted on the bill, and provided that she resigns her Senate seat.
Which...um, doesn't strike me as a terribly great idea, unless she has given up on the White House. I mean, she pretty much gives up challenging Obama in 2012 on foreign policy. So what does she do? Plan to be the first person since Dean Rusk (1961-69) to go two full terms as Secretary of State, then run as Obama's heir apparent? Or resign in protest...or to, er, spend more time with her family...midstream, then wait...outside the spotlight?
I'd think she'd be better served in the Senate, preserving her independence and visibility. She can either help take credit for implementing Obama's Brilliant Plan or take credit for salvaging things after Obama's Brilliant Plan proves to be a major fuckup, wryly itoldyousoing as seems meet. But then, that does assume she can be a major player in the Senate. Not easy, given the importance of seniority in the Senate.
Or maybe Congress could vote to decrease the Secretary of State's pay before she takes the position, to what it was before January 2007. That way, the letter of the Constitution is obeyed.
Wow, what a concept-- the federal government actually paying attention to what the Constitution says!
*grumble*grumble*grumble*
Incidentally, can we note with pleasure that Hillary Clinton at State only continues the fearless wholesale backstabbing of the Obama primary voters in which The One is cheerfully engaging?
Maybe early next year we'll see some business tax cuts, to get the economy moving, a "tactical" delay on raising those marginal tax rates and implementing the solar powered car in every pot boondoggle, giving David Petraeus everything he wants in Afghanistan and Iraq, appointing some sober and sensible jurist to replace Ruth Bader Ginsburg, instead of a Dennis Kucinich loon.
Really, the guy's cynical flexibility, ambition and intelligence may turn him into what we might have expected from the Republican Party, if the Republican Party were functioning as it ought to.
It will be sweet, watching the loyal minions' heads explode. Indeed, I fancy I can hear the first, overpressurized kernels popping now...
The way I read the Article (and IANAL), the intent seems to be just to keep the branches separate. As long as the Hillbeyotch and her ilk resign their seats before they accept the new spot, have at it.
Personally, I'd like to see it happen. Gets them out of the legislative branch, where they seem to take up permanent residence, and into a position with a term limit. Their replacements will be weaker politically ((having never been elected), and will be a better target in the next election.
And, with a Hill-Bill hanging around the White House, who knows what hi-jinks might ensue? More comedic fodder!
There's another way around this problem: Use the big Democratic majorities in Congress to pass a constitutional amendment eliminating the emoluments clause. Who needs an emoluments clause anyway?
Congress can't amend the Constitution by themselves, Ken (for good reason).
Congress doesn't need to amend the Constitution because of this issue. All they have to do is ignore the Constitution like they do all too often.
OK, so it goes to the states and takes a few years. What's the rush?
According to Madison's notes, James Madison actually wanted the provision to extend for a full year after the term of the Senator or Representative. But that didn't pass.
Also, I think that the provision is silent on the question of compensation having been reduced to its previous level. Although there's precedent (Lloyd Bentsen most recently, for example), if the compensation has been raised for anyone, it bars the Senator or Representative until his term has expired. Likewise, cost of living increases are still increases, as are expense accounts, changes in the tax treatement of same, and other perks of the office. Even a more favorable health care plan or vacation policy.
Note that you could use this to bar even a Vice President if he is appointed to the office as Rockefeller or Ford were.
Now realistically, the reduction in compensation remedy seems fair and prevents Madison's original concern, which had to do with Congress making offices for its members and then occupying them. But if you REALLY want to split hairs, you could raise a fuss about it.
And now I'm off to read Volokh.
If this is challenged (I don't expect that) I do expect that Hillary's appointment will be upheld. Underlying that belief is a realization that the Justices of the Supreme Court would equitably see any alleged breach as "technical but immaterial" and therefore prone to look for ways to ignore it.
There are two good ways to them to reach this finding, and one bad way.
The bad way would be to say that the clause uses the male pronoun and only refers to men, and therefore dismiss the case because Hillary is a woman. They will not use this argument and may even actively denigrate this argument in the dicta.
A good way would be to say that although the clause is written in the passive voice (a drafting no-no), the clear Framer's intent is to prevent Congress from making well-paid but responsibility free positions for themselves in the Executive branch and then horse trading favorable laws for appointments to those positions with the President. On this reading the last time Congress acted on the emoluments of SecState was prior to Hillary's current term, and therefore she can not be accused of self dealing. So there is no violation of the intent.
The better way though, because it's narrower and avoids "intent" interpretations, would be merely to recognize that "cost of living adjustments" are not "encreases" in the emoluments of the position at all. They are merely adjustments that maintain the level of compensation as measured against a basket of goods (as opposed to a fiat currency which fluctuates in value).
Things that occur to me, in vaguely logical order:
It's a reach to challenge Sen. Clinton based on her ineligibility for the appointment. I think it might become extremely relevant if there's a Presidential succession that goes all the way down to the Secretary of State.
As an aside, can the House hijack Presidential succession after the Vice President by putting in place a Speaker of the House succession?
It doesn't seem like something like elligiblility stops the current liberal illuminati from getting much achieved that they want.
As an aside, can the House hijack Presidential succession after the Vice President by putting in place a Speaker of the House succession?
The succession (past the Vice President) was established by Congress. So there's no reason they couldn't change or subvert it (as the case may be).