Challenge: Clinton can't serve as secretary of state

Group cites ineligibility clause

By Christina Bellantoni (Contact) | Wednesday, December 3, 2008

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UPDATED:

CHICAGO | President-elect Barack Obama is set to name New Mexico Gov. Bill Richardson as his secretary of commerce on Wednesday morning, finalizing more Cabinet selections as a government watchdog group challenges the eligibility of one of his top nominees.

Judicial Watch on Tuesday filed a complaint charging Sen. Hillary Rodham Clinton is constitutionally ineligible to serve as secretary of state because of an obscure clause that no member of Congress can be appointed to an office that received a salary increase during the time the member was serving.

"No public official who has taken the oath to support and defend the Constitution should support this appointment," Judicial Watch President Tom Fitton said.

But Senate Majority Leader Harry Reid plans to submit a resolution for a fix that has been used previously under President Nixon and President Clinton.

Citing the ineligibility clause in Article I, section 6 of the Constitution, Judicial Watch asserts that a January 2008 executive order signed by President Bush during Mrs. Clinton's current Senate term increased the secretary of state's salary from $186,600 to $191,300, making Mrs. Clinton ineligible for the position.

Reid spokesman Jim Manley said there is "ample precedent" for the Senate to support his boss' proposal.

"There is nothing new here," he said. "The fact is, this has happened several times before."

The Obama transition team did not respond to several requests for comment, and a law professor waved off the argument.

"There's not much question they have accurately stated the language of the Constitution, but the question is what do you do about it," said Jesse H. Choper, an Earl Warren professor of public law at the University of California, Berkeley.

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