From NBC's Pete Williams
If President-elect Barack Obama nominates Hillary Clinton to be secretary of state, many legal scholars believe it would be the former law professor's first violation of the Constitution as president.
Why? Because the Constitution forbids the appointment of members of Congress to administration jobs if the salary of the job they'd take was raised while they were in Congress. (Article I, Section 6: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil office ... the Emoluments whereof shall have been encreased during such time." Emoluments meaning salaries and benefits.)
Past presidents have confronted this problem repeatedly -- Taft in nominating Sen. Philander Knox to be secretary of state, Nixon in nominating Sen. William Saxbe to be attorney general, Carter in nominating Sen. Ed Muskie to be secretary of state, and Clinton in nominating Sen. Lloyd Bentsen to be treasury secretary, to name some notable examples.
The usual workaround is for Congress to lower the salary of the job back to what it was so that the nominee can take it without receiving the benefit of the pay increase that was approved while the nominee was in Congress. This maneuver, which has come to be known as "the Saxbe fix," addresses the clear intent of the Constitution, to prevent self-dealing.
But many legal scholars believe it does not cure the Constitutional problem, because the language of Article I is so clearly an absolute prohibition: No senator or representative, period.
"The content of the rule here is broader than its purpose," said Professor Michael Stokes Paulsen, a Constitutional law expert at St. Thomas School of Law in Minneapolis. "And the rule is the rule; the purpose is not the rule."
"A 'fix' can rescind the salary," he added, "but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls."
Having said all this, so what? If Obama goes ahead and nominates Clinton, it's doubtful the courts would entertain a lawsuit from an outraged citizen. Such generalized taxpayer lawsuits are disfavored by the federal courts.
A more difficult case might come if a Secretary of State Clinton issued an order that put a specific citizen at a disadvantage. That might give rise to a lawsuit that could get some traction.
Even then, though, some legal scholars believe it would be a hard case to make. Former Clinton Justice Department solicitor general Walter Dellinger says there's reason to think that the official acts of someone in a federal office are valid, even if the person's qualifications for the office are in doubt.