Tuesday, December 16, 2008


Trust Us; We're from the Ivy League

President-elect Barack Obama nominated Chicago schools executive Arne Duncan as his education secretary this morning and is expected to tap Sen. Ken Salazar (D-Colo.) later this week to serve as secretary of the interior, all but finalizing his selections for major Cabinet posts. Obama Picks Chicago's Schools Chief For Cabinet - washingtonpost.com

I once again refer to the Emoluments Clause in the Constitution and simply note that Senator Salazar was first elected in 2004, meaning his term doesn’t end until January 2011. The same objections apply that I had to Senator Clinton’s nomination to be Secretary of State.

Unfortunately, like they did for Ms. Clinton, Congress will probably just roll back any pay raises for the Secretary of the Interior and call it even. I disagree with this end-around – as did supposed constitutional stalwart Senator Byrd (D-WV) at one time but I guess, seeing as how the matter passed the Senate unanimously, he thinks the Saxbe Fix was somehow wrong for Republican Saxbe but okay for Democrat Clinton.

(Update: To be fair to Senator Byrd, voting to roll back a salary is not the same as voting to approve the nomination of Senator Clinton so I take back that last bit of snark...for now.)

For the record:

“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.” The U.S. Constitution Online

Words matter and the text clearly says “…shall have been increased…” meaning that any increase should be sufficient to trigger this prohibition. Had the phrase instead been “…has increased…” then it becomes a simple measure at two points in time – now and the start of the Member’s elected time. Rolling back the increase doesn’t obviate the fact that it earlier had been increased…any more than our current less-than-$2-a-gallon gas makes the price increases this past summer any less real.

I doubt that Ivy Leaguers Barack Obama and Hillary Clinton really gave this a lot (or even any) thought so I especially disliked (like many) the condescension displayed in this telling comment:

Philippe Reines, a spokesman for Mrs. Clinton, said she and Mr. Obama had anticipated the issue and were prepared to resolve it. “This is a Harvard Law grad nominating a Yale Law grad here, so all parties involved have been cognizant of this issue from the outset,” he said.”

Well, I went to Maryland Law and I managed to pass the bar exam (which tests, among other subjects, Constitutional Law) my FIRST time around…unlike a certain “Yale Law grad here”.

Side Note: I’ve come across nothing that indicates either of these two law school Ivy Leaguers have any particular well-thought out approach to reading and applying our Constitution…unlike, say, these two similarly educated law school Ivy Leaguers: Justice Scalia (Harvard) and Justice Thomas (Yale). Of course, the latter two have an unfair advantage as they were the beneficiaries of a Jesuit undergraduate education.

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