Clinton's Confirmation May Spark Constitutional Battle

Nov. 21, 2008: Hillary Clinton, speaking during a memorial ceremony in Harrisburg, Pa., has accepted President-elect Obama's offer of the job of secretary of state. (AP)

The biggest obstacle facing Hillary Clinton's Senate confirmation as President-elect Barack Obama's top diplomat may not be her husband's wheeling and dealing abroad for his foundation, as many suspected.

Instead, it could be the U.S. Constitution.

According to an emolument clause in the Constitution, no lawmaker can be appointed to any civil position that was created or received a wage increase during the lawmaker's time in office.

President Bush ordered Cabinet salaries raised to $191,300 from $186,600 by executive order early this year, while Clinton was senator.

"My understanding is that does prohibit her unless they can find some way around it and I gather that they have in the past," former Secretary of State Lawrence Eagleburger told FOX News.

"This isn't the first time this has come up," he said, referring to appointees of other presidents. "Maybe she has to renounce the salary increase but I'm sure they'll find a way around it."

The Obama transition team did not respond to a request for comment.

Some constitutional lawyers don't foresee the provision derailing Clinton's nomination.

"I don't believe it presents a serious issue because the legislative fix which has been done in the past is perfectly constitutional," said Adam Bonin, an attorney at the Philadelphia law firm of Cozen O'Connor.

The legislation that Bonin referred to is the "Saxbe fix" that allowed President Richard Nixon to name Ohio Sen. William Saxbe his Attorney General.

The attorney general's salary was raised during Saxbe's term in 1969 but Nixon convinced Congress to lower Saxbe's salary to what it was before 1969.

The most recent case involved Texas Sen. Lloyd Bentsen, who was nominated to be President-elect Bill Clinton's treasury secretary in 1993. To avoid conflict, Congress passed legislation lowering the salary of that position to its 1989 level.

Bonin believes Congress should pass similar legislation for Clinton.

"I think that's the safe move to make," he said, adding that he believes Clinton could be confirmed without a legislative fix because Congress didn't vote for Bush's pay raise.

Daniel Dreisdach, a professor of law at American University, said it would be difficult for anyone to use the provision to challenge Clinton's confirmation.

"In this respect, it's a bit analogous to this question of whether Barack Obama is a natural born citizen," he said, referring to a lawsuit, dismissed last month, seeking to obtain a copy of Obama's Hawaii birth certificate.

"Then it becomes who has legal standing to challenge his credentials as president or Hillary Clinton's assumption of the office," he said.

Dreisdach said as long as Democrats control the Senate, the Obama transition team won't worry about this provision in the Constitution.

"The Obama team is well aware of it and they have dismissed it," Dreisdach said. "I find it hard to believe that a Democratic majority will take a different view."