Jack Balkin over at Balkinization chimed in yesterday on an ongoing debate among textualists over whether Hillary Clinton can accept the Secretary of State position without violating the Constitution. As Balkin explains, the little-known “Emoluments Clause” of the Constitution, which bars members of Congress from assuming federal office when the salary for that office has been increased during their term in Congress, currently stands in Ms. Clinton’s way:

Hillary Clinton was elected to the Senate in 2006. A January 2008 executive order pursuant to a general cost of living adjustment statute increased the Secretary of State’s salary (along with many other federal offices). January 2008 falls within the term for which Senator Clinton was elected. Her appointment to Secretary of State would also be during the time for which she was elected. The Secretary of State is a civil office under the Authority of the United States.

The Emoluments Clause (or Ineligibility Clause), Article I, § 6, cl. 2 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 . . . .

One possible remedy to the Clinton conundrum is the so-called “Saxbe Fix,” in which Congress would simply reduce the Secretary of State’s salary to its previous (pre-2006) level. This “Fix” has been used in the past, most recently in 1993 when Ms. Clinton’s husband, then President-elect, sought to appoint Sen. Lloyd Bentsen to be his Secretary of Treasury. In this instance Congress was obliged to pass a resolution lowering the salary, just as it did in 1973 when President Nixon appointed Sen. William Saxbe as his Attorney General (whence the “Fix” gets its name), and in 1909 when President Taft appointed Sen. Philander Fox as his Secretary of State.

However, whether employing “Saxbe” constitutes circumnavigating (and therefore, one could argue, violating) the Constitution depends on how ambiguously one reads the Emoluments Clause. Eugene Volokh argues at the Conspiracy, noting that if Congress now lowered the Secretary’s salary then there would be no net increase during Clinton’s term in the Senate:

I think the phrase “the Emoluments whereof shall have been encreased during such time” is ambiguous. It could mean “shall have been increased at least once,” or it could mean “shall have been increased on net.” If you’re thinking about buying a computer, for instance, and you ask “Has the price of this computer been increased during the last year?,” it seems to me quite possible that you would mean “Has it been increased so that it now costs more than it cost a year ago?,” rather than “Has it been increased at all, even if the price hike was entirely rolled back a month later?” In fact, the “on net” reading strikes me as more plausible than the rival reading.

Balkin seems similarly inclined to support the constitutionality of “Saxbe,” though he gets a little more philosophical about it:

My guess is that the question of whether you think the clause is ambiguous or clear will turn on whether you think it creates a serious problem– for example, you think it very important that Presidents should be able to nominate the people they think are most qualified to federal offices. That is, the consequences of an interpretation inevitably affect our judgments of clarity and ambiguity… If you think that the political branches should be given some leeway in close cases, if you also think there is no overriding and very important principle that is threatened, and if you think that past precedents should generally be respected unless there are good reasons to ignore them, you should allow the Saxbe Fix.

In any event, the history of using the Saxbe Fix suggest the chances are strong that Clinton will actually be permitted to accept the job. Though if you find yourself wondering why she’d be getting paid considerably less than her predecessor, Condoleezza Rice and her colleagues in Obama’s cabinet, you now know you have the Emoluments Clause to blame (or thank).

(Note: Word to Adam Bonin at Kos for pegging Constitutional history as fun, and arguing “y’all ought to cogitate on it more often.” Adam, we couldn’t agree more.)