Monday, June 7, 2010
The Supreme Court on Monday dismissed the appeal of a foreign service officer who challenged Secretary of State Hillary Rodham Clinton's appointment under the Ineligibility Clause. Article I, Section 6, Clause 2, of the Constitution reads:
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 . . . .
Then-Senator Clinton's appointment as Secretary of State would have violated the Clause. But Congress, in a time-honored move, rolled back the Secretary's salary to its level of January 1, 2007, thus negating any increase for the office during Clinton's time in the Senate. The move, known as the "Saxby fix" after President Nixon's pick for AG, Senator William Saxby, is widely regarded as an effective--and legal--dodge of the Ineligibility Clause, and President Obama's OLC opined early in the administration that the fix was fully effective here.
But Congress nevertheless provided for judicial review of Congress's Saxby fix for Secretary Clinton before a three-judge panel of the U.S. District Court for the District of Columbia. That court ruled in October 2009 that a foreign service officer who filed suit against Secretary Clinton under the act lacked standing. The officer appealed directly to the Supreme Court (as authorized under the act), and the Court in a two-sentence order on Monday dismissed the appeal.
Why? The act, Pub. L. 110-455, authorizes direct appeal to the Supreme Court, but only "from any interlocutory or final judgment, decree, or order upon the validity of the appointment and continuance in office of the Secretary of State under article I, section 6, clause 2, of the Constitution, entered in any action brought under this subsection." Because the district court dismissed for lack of standing, "it did not enter 'any interlocutory or final judgment, decree, or order,'" Rodearmel v. Clinton; therefore, no jurisdiction.