Challenge: Clinton can’t serve as secretary of state

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.

In 1973 Mr. Nixon pushed a bill to change the attorney general's salary so he could legally appoint Ohio Sen. William Saxbe to the Cabinet post, a move that became known as "The Saxbe Fix," and which Mr. Clinton used in 1993 to name Sen. Lloyd Bentsen as Treasury secretary.

Clinton senior adviser Philippe Reines dismissed the claim as pushed by "fringe groups."

"This is a Harvard Law grad nominating a Yale Law grad here, so all parties involved have been cognizant of this issue from the outset," Mr. Reines said. "But putting frivolous lawsuits by fringe groups aside, this issue has been resolved many times over the past century involving both Democratic and Republican appointments and we're confident it will be here too."

Judicial Watch argued, "the Constitution does not provide for a legislative remedy for the Ineligibility Clause," but two legal scholars disagreed.

"The courts would decline to hear that lawsuit on the grounds that this is a matter to be resolved in a political process," Mr. Choper said. "The fact is that it's been a practice that apparently has been accepted as remedying the purpose for which the constitutional provision was enacted."

Dan Farber, another Berkeley constitutional law professor, said there was no conflict when Mr. Bush signed the order earlier this year.

"The last thing he had in mind was that he could sway Clinton's vote by promising her the position with higher pay, and any possible conflict is eliminated if she doesn't actually get the higher salary," he said.

Paul Orfanedes, director of litigation for Judicial Watch, said the group was looking for someone who could have standing to sue based on the clause, such as a State Department employee.

"If we could find someone, it looked like a good solid legal case," he said. "Sure."

For her part, Mrs. Clinton has not commented on the complaint.

Mr. Obama is expected to name Mr. Richardson to the post at a 10:40 a.m. EST press conference in Chicago. On Tuesday, the president-elect and named Louis Caldera to serve as director of the White House Military Office.

c Nicholas Kralev contributed to this report