Emoluments Update
December 1st, 2008 by Nick SaintWith an official announcement of the Clinton nomination (finally) immanent, Ben Smith has weighed in on the emoluments issue. In short, his position is that the legal question is hard to judge, but that no one cares or plans to do anything about it:
And there are serious lawyers who see this, legally speaking, as a real obstacle.
It is not, however, an actual political problem, any more than it was when Sen. Lloyd Bentsen became Treasury secretary in 1993 or when Richard Nixon made Sen. William Saxbe attorney general in 1973.
Nixon’s lawyers used what’s now known (in very small circles) as the “Saxbe fix,” by which Congress re-lowered the salary for the job, deciding that that got around the constitutional issue.
The dodge actually goes further back than that, though: Taft’s secretary of state, Philander Knox, came through the same loophole; his salary was brought back down to $8,000 in February of 1909.
(This doesn’t mean that it’s legally unquestionable. The Reagan administration, Eugene Volokh writes, decided not to name Orrin Hatch to the Supreme Court in part based on a legal opinion that the Saxbe fix wouldn’t do.)
That people think this may well be unconstitutional but don’t care should not be shocking; if the laws of our land were a movie, the producers might run some ads with a phrase like “inspired by the controversial 1787 document”, but the framers definitely wouldn’t get a writing credit. Personally, I think getting rid of it altogether or actually doing what it says would both be better than our current system, but neither is at all plausible.
Here’s what is shocking: Reagan was thinking of appointing Orrin Hatch to the Supreme Court? Really? God bless emoluments:
