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Clinton's nomination popular, but is it constitutional?

  • Story Highlights
  • Conservative group says Hillary Clinton ineligible to be secretary of state
  • The group cites Article 1, Section 6 of the Constitution
  • Article: Lawmaker cannot fill position if salary has been raised during his term
  • But legal scholars say there is a way around this clause
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From Samantha Hayes
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WASHINGTON (CNN) -- Polls show that Americans overwhelmingly approve of Sen. Hillary Clinton as secretary of state, but will the founding fathers veto this popular addition to Barack Obama's "team of rivals"?

President-elect Barack Obama named Sen. Hillary Clinton as his choice for secretary of state Monday.

President-elect Barack Obama named Sen. Hillary Clinton as his choice for secretary of state Monday.

Yes, according to one conservative interpretation of the Constitution.

Article 1, Section 6 of the Constitution says the following: "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."

Translation: A lawmaker cannot fill a position if the salary for that position has been raised during that lawmaker's term in office.

In January, President Bush signed an executive order increasing the salary for the secretary of state and other Cabinet positions by $4,700. Hillary Clinton has been in the Senate since January 2001.

Case closed, says the conservative advocacy group Judicial Watch.

"There's no getting around the Constitution's ineligibility clause, so Hillary Clinton is prohibited from serving in the Cabinet until at least 2013, when her current term expires," Judicial Watch President Tom Fitton said in a statement. Video Watch: Bill Clinton talks about his wife's nomination »

"No public official who has taken the oath to support and defend the Constitution should support this appointment."

Not so fast, most legal scholars say.

In the past, lawmakers have found a way around the clause, with Congress changing the salary of the office in question back to what it originally was.

It happened when Ohio Sen. William Saxbe was named President Nixon's attorney general in 1974 and again when Texas Sen. Lloyd Bentsen became President Clinton's Treasury secretary in 1993.

"There are many ways around this problem," CNN legal analyst Jeffrey Toobin noted. "One is for Congress to vote a lower salary. Another way is for Hillary Clinton simply to accept a lower salary. Another way is simply to ignore the problem on the idea that no one has the right, has the standing, to sue to stop her from being secretary of state. Video Watch: Analysts weigh in on Clinton pick »

"This is not going to be an impediment to her being secretary of state," Toobin argued.

One Clinton aide said that both Clinton and Obama were aware of the issue when he announced her as his choice for secretary of state. And Senate Majority Leader Harry Reid's office said congressional Democrats are moving forward with a measure similar to what has been done before.

Judicial Watch takes issue with the precedent.

"We think it's inadequate," Fitton said. "You can't amend the Constitution through legislation like that. ... The Constitution doesn't have any caveats. It's plain as day."

Fitton pointed to what President Reagan did when facing a similar situation.

"Ronald Reagan took a look at this clause and decided against appointing Orrin Hatch, who was a senator and still is, to the Supreme Court," he noted.


Whatever the activists, scholars or pundits say, the public has apparently made up its mind.

A CNN/Opinion Research Corp. poll conducted December 1-2 indicated that 71 percent of Americans approve of Obama's nomination of Clinton as his secretary of state. Democrats overwhelmingly approve of the choice, with two-thirds of independents agreeing and Republicans split evenly on the pick.

CNN's Alan Silverleib contributed to this report

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