Just as we have (maybe) gotten over the idea that Obama was born in another country, there is a new attempt to oust a member of the administration because she isn't legally allowed to be in the office they currently hold. Sadly, this one is based not on conspiracy theories, but on the pesky old Constitution. Everyone, meet the Emolument Clause
.In short, a former congressperson cannot serve in a position in the rest of government if, when in Congress, they voted for a pay raise for that position. And Hillary Clinton voted for a pay raise for the Secretary of State while still a Senator. Says Mother Jones
The provision, which was designed to combat corruption, has long been a headache for presidents seeking to tap members of Congress for their Cabinets. They've typically solved the problem by resorting to what's known as the "Saxbe fix"-a move named after William Saxbe, a Republican Ohio senator Richard Nixon installed as attorney general during the Watergate scandal.
The fix is simple. All Congress has to do is repeal any pay raises for a given position so that the salary is the same as it was before the nominee's last term of elected office. Most modern presidents have adopted this solution, and after Obama nominated Clinton for secretary of state, Congress duly repealed the pay raises for the position that had gone into effect while she was serving in the Senate.
However, that fix has never been approved by a court, and one of its strongest opponents when it was first used was one Stephen Breyer, ironically now a judge on the liberal side of the Supreme Court. A court case from a State Department employee suing to have Clinton removed because the employee couldn't serve under someone illegally appointed was thrown out for lack of standing. It has been appealed directly to the Supreme Court. We'll see, perhaps, where Justice Breyer now stands.
Though, note, this is still mostly a non-issue from the "Constitutional esoterica" files. Hillary Clinton will remain the Secretary of State.