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Constitutional FAQ Answer #160

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Q160. "In some blog posts lately, I've heard that Hillary Clinton can't be Secretary of State, but some other posts say she can be because of the Saxbe Fix. What's this all about?"

A. One of the concerns of the Framers of the Constitution was corruption in government. One of the ways they used to prevent corruption is the system of checks and balances, but that's a system-wide solution. They also knew human nature and realized that they should prevent individual conflicts of interest whenever they could. One basic example is the requirement that a Representative be a resident of the state they represent.

Another is the Emoluments Clause, also known as the Incompatibility Clause and the Ineligibility Clause. This clause has two parts to it. The first part says that no member of Congress can be appointed to a position in the government that was created during the member's term in office. This was to prevent a person from creating a job for themselves.

The second part is relevant to Clinton, and is where the Saxbe Fix comes in. This part also says that a member of Congress cannot take a position in government where the salary for that position was increased during the member's term. In Clinton's case, she was a member of the Senate when the Congress approved a raise in pay for the cabinet secretaries, including the Secretary of State. It would seem, then, that this clause would prevent Clinton from taking the job until her term expires.

Enter the Saxbe Fix. As you may imagine, this is not the first time a member of Congress has been asked to take a position in the government, and raises in pay for these positions, while not common, are not rare either. The fix is this: Congress reduces the salary for the position in question to the pre-raise amount. Then, the theory goes, there is no conflict, and no bar to the person taking the position. The name stems from William Saxbe, who Richard Nixon appointed to be Attorney General in 1973. Saxbe was a Senator from Ohio at the time. The fix was devised by the acting Attorney General and passed by Congress. The fix was also used by Howard Taft in 1909, for his Secretary of State Philander Knox (though it was not called, of course, the Saxbe Fix in 1909). The Fix was also used by President Jimmy Carter and President George H.W. Bush.

Constitutional literalists, or strict constructionists, feel the fix violates the letter of the Constitution, which it surely does. However, the Fix is in line with the spirit and intent of the Constitution, so satisfies those who do not consider themselves strict constructionists.

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