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February 02, 2009

Judicial Watch Sues Clinton Over Emoluments Clause

The activism-by-litigation group Judicial Watch sued Secretary of State Clinton today on the theory that the so-called "Saxbe Fix" did not make Clinton's appointment constitutional. A copy of the complaint is here (PDF). They dug up an FSO from the state department to be the plaintiff.

The Emoluments Clause 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.

Congress reduced the Secretary of State's pay to what it was before Clinton became a senator. That's the "Saxbe Fix."

Is the case going to get anywhere? Doubtful. They let William Saxbe get away with it in the 1970s, so there's precedent. Also, who has standing? As with the Obama Birther lawsuits, it's difficult to find someone who has suffered injury to a protected interest.

Finally, with the executive and the legislative branches having decided the issue and moved on, the judicial branch will be loath to intrude. Just what solution is available? An injunction directed at the parties, Clinton and the Department of State, telling them to ignore Congress and the President. Not likely. Or an injunction directed to non-parties, Congress or the President. Even less likely.


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posted by Gabriel Malor at 08:56 PM

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