I thought an emolument was a facial cream

Poor Hillary can’t catch a break. It seems that the increase in pay for the Secretary of State job – an emolument of that civil office – during her tenure as a US Senator makes her ineligible for the job.

The Emoluments Clause of Article I, section 6 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 encreased during such time."

There’s a couple of good articles that explore the issue at The Volokh Conspiracy and The New Republic.

At issue is W’s Executive Order that increased the base pay for the SoS. Specifically, the document is a January 4, 2008, EO entitled “Adjustments of Certain Rates of Pay.”

In fact, it seems that the problem should not be limited to just Hillary, but to anyone from the current roster of the House or Senate. Section 3(a) of the EO states that it is making an adjustment to the “Executive Schedule.” Note the use of that phrase here, along with “Level I.” The list of positions in Level I is here. It’s the entire Cabinet and more.

So the issue becomes whether a simple adjustment to pay should disqualify anyone. That would seem to be overly punitive.

The articles linked above make the collective argument that the clause is broadly written yet clear. They also cite (and question the authority of) a similar situation which was resolved by merely returning the salary (the emolument) to its previous state.

The Constitution seems clear: the Emoluments whereof shall have been increased. That does not give the option to withdraw the increase. History cannot be rewritten. “Shall have been” is clearly a past-tense construction. Apparently, however, the plain meaning has been blown through in the past.

The first correction to pay-scale was under Taft in 1908 so that Sen. Knox could become his SoS. More recently (and the only other instances that I am aware of) were for Nixon and Sen. Saxby (to become AG) and for Clinton and Sen. Bentsen (to become Secy. of the Treasury).

Side note - Here’s the interesting life of Sen./SoS Knox.

So is this just a simple pay increase that no one should get worked up over? Aren’t the three examples above enough precedent for us sweep the issue away?

Revisit Article I, section 6: "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."

There are two operative parts: A federal legislator – during the time he was elected – cannot be appointed to a civil office; and the emoluments clause.

No one seems to have a problem with expecting a Senator or Representative to resign their seat in order to sit on the President’s Cabinet. Sen. Muskie did it – Rep. Kemp did it – the list is probably long. The list of federal legislators that did not resign their seats has no entries.

So can Hillary simply resign her seat, have the pay increase rolled back, and conform to the Constitution? First, she must resign to satisfy the first part of Article I, section 6. Second, the Emoluments Clause speaks of increases in the past tense. History cannot be rewritten. So the short answer seems to be “No.”

The more thought-provoking answer is in the form of an interrogatory: Since when is it legitimate to pick and chose which portions of the Constitution will be adhered to specifically and which parts will be interpreted liberally (and in the process to ignore their plain meaning)? Further, are we now going to see a lawsuit to enjoin her appointment so that SCOTUS can eventually weigh in?

I thought Bambi was a Constitutional Law guy. Why is he wading into these waters?