The only thing standing between Sen. Hillary Clinton and the office of U.S. Secretary of State? The Constitution — or so says legal eagles like Judicial Watch’s Tom Fitton, after some close reading of the fine print.

Wait. Wtf?

According to the Constitution, “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.”

That there is Article I, § 6, clause 2, the Emoluments Clause, and it serves two purposes: 1) to prevent corruption by prohibiting the President and a member of Congress from conspiring to inflate the salary of a position before the member of Congress is appointed to that office, and 2) to limit the size and scope of the federal bureaucracy. Dusty as it sounds, it’s still very much a present-tense clause of the Constitution — and by all rights, it applies to Clinton: An executive order raised the salary for Secretary of State in January 2008, when Clinton was a sitting member of Congress.

UCLA law professor Eugene Volokh raised the question with some constitutional scholars who have published on the subject of the Emoluments Clause. One John O’Connor offered a lengthy response, which he introduced by framing the matter:

It seems to me that there are two questions regarding whether the Emoluments Clause to the U.S. Constitution (Art. I, § 6, cl. 2) renders Senator Hillary Clinton constitutionally ineligible for appointment as Secretary of State: (1) whether Senator Clinton is now ineligible for appointment; and (2) if Senator Clinton is ineligible for appointment, whether that ineligibility may be cured by the so-called “Saxbe Fix,” whereby the Secretary of State’s salary is reduced to the salary in effect before Senator Clinton’s current Senate term began.

I think it is beyond dispute that Senator Clinton is currently ineligible for appointment as secretary of State. I also believe that the better construction of the Emoluments Clause is that the “Saxbe Fix” does not remove this ineligibility.

O’Connor explains that while the so-called Saxbe Fix addresses the first purpose of the Emoluments Clause, the Saxbe Fix does nothing to disincentivize the regular creation or expansion of new federal offices — and so the Saxbe Fix is not a solution to the problem.

Another scholar, Michael Stokes Paulsen — who also decides that Clinton’s appointment is unconstitutional — explains that an even sillier technicality may provide the way out:

There is one last chance for Hillary. The Emoluments Clause provides that its rule applies to any senator or representative, “during the Time for which he was elected.” Perhaps the rule of the Emoluments Clause does not apply to female U.S. Senators.

This writer must strongly argue that, in the spirit of the Saxbe Fix, this particular loophole be named the Rohan Rider, named so after Éowyn, the improbable heroine and daughter of Rohan, who slays the Witch-king of Angmar during the Battle of Pelennor Fields despite an ancient prophecy foretold by the Elf-lord Glorifindel that the Lord of the Nazgûl would not “fall by the hand of man.” (Yeah, you feel me.)

The Rohan Rider might be Clinton’s best bet, says Paulsen, who explains that technicalities really do (or ought to) count:

[T]he fact that the Emoluments Clause catches in its snare the (possibly) blameless (for this at least) Hillary Clinton does not mean that its constitutional command can be ignored with impunity.

[ . . . ]

Unless one views the Constitution’s rules as rules that may be dispensed with when inconvenient; or as not really stating rules at all (but “standards” or “principles” to be viewed at more-convenient levels of generality); or as not applicable where a lawsuit might not be brought; or as not applicable to Democratic administrations, then the plain linguistic meaning of this chunk of constitutional text forbids the appointment of Hillary Clinton as Secretary of State.

So! I guess that means that Hillary Clinton is out at State. We all know our leaders are really big these days on following the Constitution.

Photo of Éowyn drawing used with permission under a Creative Commons license with Flickr user TomStardust.