Is Hillary Eligible?

After all the “will she or won’t she” melodrama over whether Hillary Clinton would accept Obama’s invitation to be his Secretary of State, might it all have been for naught? As extrapolated more fully in a couple of posts over at The Volokh Conspiracy, she might not even be eligible to take the office.

The problem is Article I, Section 6, Clause 2 of the Constitution, which reads:

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 ....

This is a problem because in January of this year, Duhbya, via an executive order under authority granted to the President by Congress in 1990, gave a Cost of Living Adjustment (“COLA”) to all executive branch employees, including the Secretary of State. So the question is, does the Emoluments Clause prevent Hillary – who was a Senator when Duhbya’s executive order was entered – from serving in “any civil Office under the Authority of the United States”? It’s not at all clear. A couple of commentators say no, even if Hillary relinquishes her Senate seat before nomination.

Personally, I find some of the comments over at VC about the nature of COLAs fairly persuasive. The argument is that the “emoluments” of the Secretary of State include a salary of x+COLA and thus only increasing “x” would be problematic. That makes sense to me. In my job, I’m paid like a civil servant (even though I’m not one), in that I get stepped up the grid for every year of service. That would be equivalent to increasing “x”. But separate and apart from that, we occasionally get COLAs which, in essence, bump the entire grid up. I don’t think of COLAs as a raises, in the traditional sense.

Of course, the question might all be purely academic (like the “is West Virginia constitutional?” issue) wrangling. Assuming Obama nominates and the Senate confirms Hillary, I don’t imagine a judge will look forward to ousting a sitting Cabinet member of an obscure Constitutional provision that may or may not apply. It might take some legalistic tap dancing to make it work, tho’.