I read about this technicality. Figures that someone would try to make an issue of it.

Brings to mind George Lardner arguing whenever and wherever that Eric Holder's pardon of Marc Rich is a VERY SERIOUS THING THAT NEEDS TO BE DEEPLY AND PERPETUALLY RE-EXAMINED!!!

Sheesh.

Why does that clause even exist? It seems shortsighted and ridiculous.

Off-topic, but:

Obama also took a question on Richardson's new, clean shave.

The president-elect is "deeply disappointed with the loss of the beard."

"The whole Western, rugged look was working for him," Obama said. "Maybe it was scratchy when he kissed his wife."

http://www.politico.com/blogs/bensmith/1208/Diversity_and_excellence.html

I hate to be a spoilsport (and certainly understand that the motivations are suspect), but let us not forget that they happen to be right, and the emoluments clause is a much part of the Constitution as any other part. It should be a fundamental tenet of our party (in contrast to the party in power over the past years) that we do not view the Constitution as containing "technicalities." Hate to be such a prig, but good for Judicial Watch, whatever their real motivation.

I've been following this all morning. It's amazing how many points of interest there are in this seemingly insubstantial issue.

First, I find it appalling how eager many seem to be to dismiss this as "a technicality" after the last eight years. In my experience, "technicality" is a word people use when what they really mean is "I don't like the outcome when the law is properly applied to a particular set of facts."

I take strong exception to the people who think that this clause can be ignored because it is trivial, or they think it is obsolete or because it is being interposed by paranoid nuts with an agenda (or both), and I'm kind of shocked by how many people do. The notion that the Executive Branch does not have to obey any parts of the Constitution it deems trivial or obsolete or inconvenient is a recipe for despotism. Hello? Richard Nixon? George W. Bush? Those names ringing any bells out there? This is not "Obama is not really a natural born citizen" nutjobbery--although it seems to have gotten those people very excited. This is the actual text of the Constitution.

Second, if you join me in believing neither the executive branch nor ongress is permitted to just ignore clauses of the Constitution they don't like, you are compelled to admit that this is a potentially serious problem.

The plain text of the Emoluments Clause says that you can't go from Congress to an appointive federal office during the term to which you were elected, if the salary for the office was raised during your term.

A "plain language" reading of the text of the clause indicates that this applies even if the salary is reduced back to its prior level (i.e. the "Saxbe fix") for the remainder of the Congressional term to which you were elected. Clearly, the intent is quite the contrary and the "Saxbe fix" is premised on the assumption that that intent controls the application of the clause regardless of how it reads. However, a strict constructionist would likely disagree and an Originalist could go either way.

And therein lies the problem. As far as I know, there is no "legal precedent" to support the Congressional interpretation. Rather, there is only legislative precedent. Congress is entitled to pass laws based upon its own interpretation of the Constitution, but it is the judiciary, not Congress, that gets the last word on whether that interpretation is correct. There is no legal precedent unless and until the courts rule. (Yes, there's an exception to the rule of judicial supremacy; under what's known as the "political question doctrine," federal courts can expressly decline to rule on certain constitutional questions if they are purely conflicts between the other two branches. This could easily be deemed one of those matters. However, until a court, and specifically the Supreme Court, says so, the judiciary has the last word it has not spoken on the matter. Does anyone really think there's any way on on Earth of knowing how the current Supreme Court would rule on this?

Having said all of that, I have to smirk when I see how rapidly the wingnuts have recovered their profound reverence for rigid adherence to the sacred strictures of the Constitution now that a Democrat is headed back into the White House. I'm rather saddened, however, by the corresponding decline in regard for the Constitution from some Democrats.

It doesn't matter which party is in power. Either the Constitution is the fundemental law of the United States to which everyone must answer, or its "just a goddammn piece of paper" and we're on a downward slide that ends with us becoming just one more authoritarian shithole. There is no middle ground between those two things.

When did the plain language of the Constitution become a "frivolous legal technicality"? What the hell is wrong with you all? You sound like Dubya and Alberto Gonzales. The right to privacy is based on much less of a foundation than this rule is. Want to dump that out too?

If a challenge to the nomination goes to the Supreme Court, they will be forced to rule against HRC. The "fix" envisioned by the Senate will make no difference, no matter what sort of precedent for it they claim exists.

Yeah, it sucks, but the law is the law.

Please, folks -

Judicial Watch is nutty.

But they're not the first one's to notice this. From Matthew Berger, writing in place of Marc Ambinder on November 25th(!!!):

"Essentially, you cannot take a job if the salary was increased during your current congressional term. And the salary for cabinet officials has gone up in the past year. Even if it is lowered back down, constitutional scholars say that may not be enough to fix the problem."

Obama himself had to know this. He's a Constitutional lawyer. The issue likely won't evem be raised in confirmation hearings. Still, Senate Dems are again throwing up their hands at any sign of resistance from across the aisle. This is not the path to a successful Congress.

This is the Emolument Clause (Article I, Section 9, Clause 8) of the Constitution, according to Wikipedia:

No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, 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.

What this article (or Judicial Watch) should be referring to, is Article I, Section 6, Clause 2, the "Ineligibility 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 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.

While the word emoluments is in there, it is not (at least, according to Wikipedia) what is known as the Emoluments Clause.

Technicality though it may be, and ironic though it is that the Right has suddenly discovered the Constitution, quite frankly, I'm THRILLED to see that the Senate (also ironically) is now taking the Constitution seriously, again.

After the last 8 years of both the Executive and the Legislative considering practically everything in the Constitution a piddling technicality, I love this desperately. Like a man wandering out of the desert loves a drink of cool water.

The New Republic had a post about this a while ago. The post says that the more "reasonable" interpretation (based on commentary from "Emoluments Clause experts") seems to be that Hillary as SOS would be unconstitutional.

So I suppose TNR is "right wing." Strange, then, that they endorsed Obama for president.

Just pointing out, FWIW, that Judicial Watch is the same group that sued Cheney in '02 or '03 to release the information about the top secret energy policy meeting that took place in the Dark Lord's office in '01.

Bush's 20% percent approval rating notwithstanding, never forget that in 2002, suing Cheney or expressing dissent or criticism of any sort of this regime was nearly considered a hanging offense in some parts.

Whoa, hey, people - the Constitution is not a "technicality"!

Article I, Section 6 is there to prevent a member of the legislative branch from "feathering his nest" by raising the salary of a position he is about to get appointed to or even creating a cushy spot for himself while still in elective office.

JW has done the country a service by reminding the Senate that the Constitution still matters.

I know it's hard to believe that it even still exists given the last 8+ years, but the Constitution will outlast everyone inside the Beltway.

But, hell, the Constitution is so riddled with specious interpretations at this point as to render this matter inconsequential.

Yeah, there have been bad interpretations of the Constitution before, so why bother trying to correctly interpret the Constitution at all?

I take it you'd also apply this to the First Amendment, due process, equal protection, separation of powers ...?

It is worth a quick read through these postings, and I must admit, I find it heartwarming. Real discussion, and most important, a fundamental, qualitative, difference between this, and what you see on the Red State-type blogs. Actual appreciation of the Constitution. Real concern about rule of law.

Thanks everybody, and sorry to be so mushy.

If they want to be SOOO strict, consider this: the language says "..during the time for which he was elected.." HE. So it seems SHE is exempt from this amendment! Smoke that for a while you idiots and then go find something productive to do with your time.