- The Washington Times - Monday, June 7, 2010

The Supreme Court decided Monday that it will not hear a case that challenges Hillary Rodham Clinton’s eligibility to serve as secretary of state, but the conservative group that brought the lawsuit said it will continue the fight.

The case, brought by Judicial Watch, argued that Mrs. Clinton was constitutionally barred from serving as secretary of state because Congress increased the salary of that position while she was a member of the Senate.

The group brought the case on behalf of a foreign service officer, David Rodearmel, who argued that serving under Mrs. Clinton would violate his oath to “support and defend” and “bear true faith and allegiance” to the Constitution.

The case, originally filed in U.S. District Court in Washington, was dismissed last year after a judge ruled that Mr. Rodearmel did not have the proper “standing” to challenge Mrs. Clinton’s eligibility.

Judicial Watch appealed that decision to the Supreme Court, which ruled Monday that it did not have appropriate jurisdiction to take the case. The court said it did not reach “any interlocutory or final judgment, decree, or order upon the validity of the appointment and continuance in office of the Secretary of State.”

“The court didn’t rule on the merits and we will continue the suit in the lower courts,” said Judicial Watch President Tom Fitton, adding that the group can appeal the “standing” issue to the U.S. Court of Appeals for the D.C. Circuit.

Mr. Fitton said his group will continue its current challenge and is looking for new ways to contest the appointments of Mrs. Clinton and Interior Secretary Ken Salazar, who, in a similar situation to Mrs. Clinton, was serving as a senator from Colorado before his current appointment.

“We think these two appointments are constitutionally invalid,” Mr. Fitton said.

In an obscure provision of the Constitution, a lawmaker cannot be appointed to a post that has had its salary increased during the lawmaker’s current term. In Mrs. Clinton’s case, the salary for secretary of state increased during her second term as a senator from New York, from $186,000 to $191,300 a year.

To avoid running afoul of the Constitution, Congress lowered the secretary of state’s compensation back to $186,000 before President Obama nominated Mrs. Clinton. Members of both major political parties have employed such a tactic to appoint members of Congress to posts in the Executive Branch.

Judicial Watch argues that was an unacceptable solution. It says Mrs. Clinton is not eligible to be appointed secretary of state until the scheduled end of her second senatorial term in 2013. Mrs. Clinton resigned from the Senate to take her current post.

• Ben Conery can be reached at bconery@washingtontimes.com.

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