Article I, section 6 of the U.S. Constitution provides:
"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 encreased during such time."
This provision, known as the "Emoluments" or "Ineligibility" clause is an absolute prohibition and does not allow for any exceptions. The "Ineligibility Clause" is interpreted by most as designed by our Founding Fathers to protect against corruption and ensure the separation of powers among the three branches of government.
On January 29, 2009, Judicial Watch filed a lawsuit against newly confirmed Secretary of State Hillary Rodham Clinton on the ground that she is constitutionally ineligible to serve as Secretary of State under the Ineligibility Clause. The "emoluments" or salary of the U.S. Secretary of State increased at least three times during Mrs. Clinton's most recent U.S. Senate term. That term, which began on January 4, 2007, does not expire until January 2013, regardless of Mrs. Clinton's recent resignation.
Judicial Watch's lawsuit is on behalf of Foreign Service Officer and State Department employee David Rodearmel, a retired Lt. Col. in the U.S. Army Reserve Judge Advocate General Corp. See Rodearmel v. Clinton, Case No. 09-171 (U.S. Dist. Ct., Dist. of Col.)). The lawsuit maintains that Mr. Rodearmel cannot serve under Secretary of State Clinton as it would force him to violate an oath he took as a Foreign Service Officer in 1991 to "support and defend" and "bear true faith and allegiance" to the Constitution of the United States. For more information on Mr. Rodearmel, see below.
In December 2008, Congress attempted to evade the clear prohibition of the Ineligibility Clause with a so-called "Saxbe fix," reducing the Secretary of State's salary to the level in effect on January 1, 2007. This maneuver, first used in the Taft Administration, has been more frequently used in recent years by both parties, most notably allowing Republican Senator William Saxbe to become U.S. Attorney General in 1973 and Democratic Senator Lloyd Bentsen to become Treasury Secretary in 1993. A similar "fix" has been enacted for Senator Ken Salazar to join the Obama Cabinet as Secretary of the Interior. These attempted "fixes," however, are insufficient, as they cannot alter the historical fact that -- as in Mrs. Clinton's case -- salaries increased during the terms for which these officials were elected, thereby violating the Ineligibility Clause.
The lawsuit was reviewed on an expedited basis by a special three-judge panel of the U.S. District Court for the District of Columbia who held that Mr. Rodearmel did not have standing and did not comment on the constitutional questions. Judicial Watch filed an appeal to the U.S. Supreme Court.
- Initial Complaint - January 29, 2009
- Defendant's Motion for Extension of Time - April 16, 2009
- Defendants' Motion To Dismiss -- May 20, 2009
- Exhibit 1 to the Motion to Dismiss (Office of Legal Counsel Memorandum dated May 20, 2009)
- Exhibit 2 to the Motion to Dismiss (Office of Legal Counsel Memorandum dated August 24, 1987)
- Opposition to Motion to Dismiss and Cross-Motion for Summary Judgment -- July 2, 2009
- Reply to Cross-Motion for Summary Judgment -- August 20, 2009
- Linguists' Amicus Curiae
- Plaintiff's Opposition/Response to Linguists' Amicus Curiae - September 8, 2009
- Memorandum Opinion - October 29, 2009
- Plaintiff's Notice of Appeal - November 3, 2009
- JW Appeals to Supreme Court to Consider Lawsuit Challenging Hillary Clinton's Eligibility to Serve as Secretary of State - November 12, 2009
- Hearing This Week in Lawsuit Challenging Hillary Clinton's Constitutional Eligibility for Secretary of State - September 14, 2009
- Judicial Watch Asks Court to Declare Hillary Clinton Constitutionally Ineligible to Serve as Secretary of State - July 8, 2009
- Judicial Watch Files Lawsuit Challenging Hillary Clinton Appointment on Behalf of State Department Foreign Service Officer - January 29, 2009
- Educational Panel: Hillary Clinton Constitutionally Ineligible to be Secretary of State? - December 18, 2008