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Hillary's Emoluments Problem

One of the many learning perks of the recent election cycle was watching how political arguments would form in the blogosphere, whirl around a bit and then burst into the mainstream media. Like tropical depressions forming off the coast of Africa before they rolled into the Caribbean as hurricanes, allegations about Sarah Palin, for example, would begin, say, in the Daily Kos, gather strength in the Huffington Post and finally burst forth with Category 3 force on CNN or in the NY Times. So it happened with the intriguing idea that Hillary Clinton could be barred from serving as the new Secretary of State because of an obscure clause in the U.S. Constitution prohibiting a member of Congress from accepting a position in government after serving in Congress if "the emoluments whereof shall have been increased during his term." That is, if the Congressperson had merely sat in a session of Congress that had voted a pay raise for, well -- the Secretary of State.

The Washington Post's Al Kamen was among the first to tentatively sound the hurricane warning in Big Media on November 19. A few days later, UCLA law professor Eugene Volokh provided an in-depth forum about the issue in his Volokh Conspiracy legal blog. Today, on the Monday in which Barack Obama introduced Clinton as his choice for SecState, CNN's Jeffrey Toobin explains why Article 1, Section One of the Constitution is unlikely to pose any hindrance to Clinton. In a C'mon Guys! mood, Toobin cites a few historical examples of end-runs made around the emoluments clause. He might have added that in a worst case scenario, Obama could become a strict constructionalist and point to the clause's gender-specific prohibition of a Senator taking a federal job whose salary had "increased during his term."


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