Executive and Congressional Intervention: Scorning the Constitution

Presidential Oath
I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability,
preserve, protect and defend the Constitution of the United States.

Who protects our U.S. Constitution? Who are guardians of each Article and each Section? Do Americans even care anymore?

Hillary Clinton is nominated for the U.S. Secretary of State by Barack Obama, but in recent days, we’ve seen it reported that she is not eligible for the office under Article One, Section Six of the Constitution:

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 increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

During the term of the 110th Congress, some salaries were increased by Executive Order, including the salary of the Secretary of State.

There was a great debate regarding this provision of the Constitution. In the debate notes from the Federal Convention of 1787, it is apparent that the Founders knew full well the weaknesses and temptations of man, especially when power and money were to be had. Indeed, the notes show they had much experience with avarice in their state legislatures. The following shows some of the thinking behind Article One, Section Six of the Constitution:

Mr. MADISON renewed his motion yesterday made & waved to render the members of the 1st. branch “ineligible during their term of service, & for one year after- to such offices only as should be established, or the emoluments thereof, augmented by the Legislature of the U. States during the time of their being members.” He supposed that the unnecessary creation of offices, and increase of salaries, were the evils most experienced, & that if the door was shut agst. them: it might properly be left open for the appointt. of members to other offices as an encouragemt. to the Legislative service.

Mr. SHERMAN, observed that the motion did not go far enough. It might be evaded by the creation of a new office, the translation to it of a person from another office, and the appointment of a member of the Legislature to the latter. A new Embassy might be established to a new Court, & an ambassador taken from another, in order to create a vacancy for a favorite member. He admitted that inconveniencies lay on both sides. He hoped there wd. be sufficient inducements to the public service without resorting to the prospect of desireable offices, and on the whole was rather agst. the motion of Mr. Madison.

Mr. MADISON had been led to this motion as a middle ground between an eligibility in all cases, and an absolute disqualification. He admitted the probable abuses of an eligibility of the members, to offices, particularly within the gift of the Legislature He had witnessed the partiality of such bodies to their own members, as had been remarked of the Virginia assembly by his colleague [ Col. Mason].

As politicians are wont to do, some President’s have found a way around the directive. President Nixon appointed Senator William Saxbe to the office of Attorney General and convinced Congress to reduce the pay level to the pre-pay-increase. The maneuver became known as the Saxbe Fix. Ten Democrat Senators voted against the “Fix,” one of which was Senator Robert Byrd (D-WVA) who said “we should not delude the American people into thinking a way can be found around the constitutional obstacle.”

According to WorldNetDaily, President Ronald Reagan removed Senator Orrin Hatch from a short list of Supreme Court nominees to avoid subverting the Constitution under Article 1, Section 6.

Other constitutional work-arounds are a part of our Constitutional history. At least once, Congress issued a joint resolution to maneuver around the problem with Article One, Section Six, and in general, the nominee was considered ineligible for the increased salary and took the position with the pre-pay-increase, at least for one year.

The intent of the Founding Fathers is clear. They intended for no member of the House or Senate to be appointed to any cabinet office, if the salary for that position had been increased during the Senator or Representative’s term in Congress. The reasons for their thinking is also clear: salary increases for civil office provided an open door to graft and greed for those with their eye on the prize.

President-elect Barack Obama will take the oath of office in January 2009 and he will swear as follows:

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

“Preserving” the Constitution isn’t high on Congress’ list, or that of Obama, of things to do these days. I’m appalled that this founding document has been manipulated in this way. Frankly, I had no idea. Presidential and Congressional intervention are not the only two bodies to have their way with the Constitution. The judicial branch, many years ago, allowed egregious misinterpretation of the 14th Amendment (citizenship). We are paying the price today with each anchor baby born here. More on that in a few days.