President-elect Barack Obama's announcement today that he will appoint Hillary Clinton as his secretary of state has turned the spotlight on a Steptoe & Johnson D.C. partner named John O'Connor (pictured below.) But it's not because of any views O'Connor has on the wisdom of the choice, or on the issues Clinton faces. O'Connor was fielding calls and being cited on blogs because of a law review article he wrote 13 years ago that suggests that an appointment like Clinton would be unconstitutional.
The subject of O'Connor's article (.pdf file) in Hofstra Law Review was the under-appreciated emoluments clause in Article I Section 6 of the Constitution. It prohibits members of Congress from being appointed to any U.S. "civil office" that was created, or whose "emoluments" or salary was increased, during the term of office of that member of Congress. Since the salary of the Secretary of State was increased in January, during Sen. Clinton's current term -- albeit a cost-of-living increase implemented by an executive order -- that would preclude her appointment, in O'Connor's view.
Of course this is not the first time the issue has been faced, and the so-called "Saxbe fix" was devised to take care of it when President Nixon appointed Senator William Saxbe to be attorney general in 1973; Congress reduced the salary for that position to its previous level. But O'Connor thinks the fix is itself constitutionally flawed, though in the end he thinks the issue is somewhat academic because he can't think of who would have standing to challenge the appointment, or the fix, in court.
In short, says O'Connor today, "It's a disabling problem that can't be fixed, but I also don't think anyone would have standing to raise it." He is uncertain whether, as some bloggers have suggested, a case for standing might be made by someone aggrieved by a decision made by Clinton as secretary of state, such as the denial of a passport.
O'Connor wrote the article as a paper for a 3L constitutional law seminar at the University of Maryland School of Law. He recalled today that "I was looking for a part of the Constitution that had not been written about much." He certainly found it, and he hasn't thought about the issue much since. But a couple of weeks ago UCLA law professor Eugene Volokh, proprietor of the popular Volokh Conspiracy blog, e-mailed him to ask his views about a possible Clinton nomination. O'Connor replied, and his name has been bouncing around the blogosphere ever since.
O'Connor, 42, seems amused by the attention his long-ago article is getting now -- especially since it relates to a subject far from his current civil litigation practice. He jokes, "I'm not part of our emoluments clause group here."
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