Posted by Eugene Volokh:
The Saxbe Fix Is In,
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1229024610
or at least getting there: The Congress passed a bill, S.J. Res. 46,
lowering the Secretary of State's salary to its pre-raise levels, thus
allowing Senator Hillary Clinton to be appointed to the office. I have
no reason to doubt that the President will sign it. Here's the text of
the bill:
JOINT RESOLUTION
Ensuring that the compensation and other emoluments attached to the
office of Secretary of State are those which were in effect on
January 1, 2007.
Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. COMPENSATION AND OTHER EMOLUMENTS ATTACHED TO THE OFFICE
OF SECRETARY OF STATE.
(a) In General- The compensation and other emoluments attached to
the office of Secretary of State shall be those in effect January
1, 2007, notwithstanding any increase in such compensation or
emoluments after that date under any provision of law, or provision
which has the force and effect of law, that is enacted or becomes
effective during the period beginning at noon of January 3, 2007,
and ending at noon of January 3, 2013.
(b) Civil Action and Appeal-
(1) JURISDICTION- Any person aggrieved by an action of the
Secretary of State may bring a civil action in the United States
District Court for the District of Columbia to contest the
constitutionality of the appointment and continuance in office of
the Secretary of State on the ground that such appointment and
continuance in office is in violation of article I, section 6,
clause 2, of the Constitution. The United States District Court for
the District of Columbia shall have exclusive jurisdiction over
such a civil action, without regard to the sum or value of the
matter in controversy.
(2) THREE JUDGE PANEL- Any claim challenging the constitutionality
of the appointment and continuance in office of the Secretary of
State on the ground that such appointment and continuance in office
is in violation of article I, section 6, clause 2, of the
Constitution, in an action brought under paragraph (1) shall be
heard and determined by a panel of three judges in accordance with
section 2284 of title 28, United States Code. It shall be the duty
of the district court to advance on the docket and to expedite the
disposition of any matter brought under this subsection.
(3) APPEAL-
(A) DIRECT APPEAL TO SUPREME COURT- An appeal may be taken directly
to the Supreme Court of the United States from any interlocutory or
final judgment, decree, or order upon the validity of the
appointment and continuance in office of the Secretary of State
under article I, section 6, clause 2, of the Constitution, entered
in any action brought under this subsection. Any such appeal shall
be taken by a notice of appeal filed within 20 days after such
judgment, decree, or order is entered.
(B) JURISDICTION- The Supreme Court shall, if it has not previously
ruled on the question presented by an appeal taken under
subparagraph (A), accept jurisdiction over the appeal, advance the
appeal on the docket, and expedite the appeal.
(c) Effective Date- This joint resolution shall take effect at
12:00 p.m. on January 20, 2009.
I should note that, though some people think the Saxbe fix doesn't
make the appointment constitutional, the bulk of recent precedent from
the Legislative and Executive Branches supports its constitutionality,
and the text strikes me as ambiguous on the subject. For more on this
issue, including the text of the underlying constitutional provision,
a bit about historical precedent, the views of some scholars, and
speculation on whether the constitutionality of the appointment can be
challenged in court, see [1]here.
References
1. http://www.volokh.com/posts/chain_1227548910.shtml
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