President-elect Barack Obama on Monday announced his former Democratic rival candidate as his choice of secretary of state when the new administration takes office in January, to replace Bush appointee Condoleezza Rice.
However, Judicial Watch, a public watchdog that investigates and prosecutes government corruption, said on its website that Clinton is constitutionally barred from taking the office due to a pay-rise Rice received while Clinton was senator, citing the Ineligibility Clause of the United States Constitution. The clause was included by the Founding Fathers when the constitution was written in 1787 to protect against corruption.
"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 [wages] whereof shall have been encreased during such time," according to the clause.
Former President Richard Nixon was able to get around the constitutional provision when he appointed Ohio Senator William Saxbe to the position of attorney general. The Nixon administration forced legislation through Congress to reduce the salary for the position of attorney general to the level of that before Senator Saxbe's appointment. Known after this incident as "The Saxbe Fix," it was again used to allow Senator Lloyd Bensen's assuming the position of treasury secretary under President Clinton.
President Ronald Reagan reportedly did not appoint Senator Orin Hatch to the Supreme Court because of this same provision.
The "Saxbe Fix" may reduce the salary of secretary of state to previous levels, but it does not affect what is a clear constitutional prohibition, according to the report from Judicial Watch. It cannot change the fact that the salary had been increased while Senator Clinton served in Congress.
The last time the secretary of state's wages were increased was in January 2008, when Clinton was reelected to the Senate.
"There's no getting around the Constitution's Ineligibility Clause, so Hillary Clinton is prohibited from serving in the Cabinet until at least 2013, when her current term expires," according to Judicial Watch President Tom Fitton.
"Barack Obama should select someone who is eligible for the position of Secretary of State and save the country from a constitutional battle over Hillary Clinton's confirmation. No public official who has taken the oath to support and defend the Constitution should support this appointment. And aside from the constitutional issue, Hillary Clinton's long track record of corruption makes her a terrible choice to serve as the nation's top diplomat," he said.
