Hillary to Be Nominated for Secretary of State, but Is She Eligible?

There are some constitutional questions arising from the nomination of Hillary Clinton to Secretary of State (from RedState):

President-elect Barack Obama plans to nominate Senator Hillary Rodham Clinton as his secretary of state on Monday.

Hillary's nomination will be made in the face of the Constitutional prohibition in the Emoluments Clause (Article I, Section 6, clause 2):

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 increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office.


That's quite clear. A Senator, such as Hillary, is prohibited from serving in any federal office "created" or the "emoluments whereof" were increased during the Senator's term.

The salary of the Secretary of State was increased in January 2008 by an executive order, promulgated pursuant to a 1990s cost of living adjustment statute. Because the increase occurred during the time Hillary was a Senator she can not be the Secretary of state.

Read the rest of the RedState post to see what could be done to fix this. Other thoughts on the issue here. The whole thing is probably a nonstarter.