From my Obscure Constitutional Clauses Desk here (and we've been busy lately), I am happy to report that both houses of Congress last night, by unanimous consent, passed S.J. Res. 46, which provides for a "Saxbe fix" to any constitutional issues presented under the Ineligibility Clause by Sen. Clinton's impending nomination to serve as Secretary of State.  It now goes to the President's desk for his signature.

The Bill is structured exactly the same as that provided for Sen. Bentsen in 1993, and reads in its pertinent part as follows:

In General- The compensation and other emoluments attached to the office of Secretary of State shall be those in effect January 1, 2007, notwithstanding any increase in such compensation or emoluments after that date under any provision of law, or provision which has the force and effect of law, that is enacted or becomes effective during the period beginning at noon of January 3, 2007, and ending at noon of January 3, 2013.

This joint resolution "shall take effect at 12:00 p.m. on January 20, 2009."

As with the Bentsen relief bill, the law provides jurisdiction in the United States District Court for the District of Columbia for "any person aggrieved by an action of the Secretary of State" to bring a civil action to contest the constitutionality of Sen. Clinton's appointment.  Such claims are to be heard by a three-judge panel on an expedited basis, with an appeal allowed directly to the Supreme Court of the United States, which itself is asked to accept jurisdiction over the appeal and handle it on an expedited basis.

Problem, hopefully, solved, though you may be wondering who would have standing to be "aggrieved by an action of the Secretary of State" and file such a suit.  My best guess is someone whose passport application was denied by the Secretary of State, but even there, the plaintiff would likely have to demonstrate that not only was she injured by the Secretary's action, but that Clinton's alleged unconstitutional appointment caused the injury -- i.e., that it must be likely that removing her as Secretary of State would redress the injury by yielding a different outcome.  

This is, as you can guess, an exceptionally difficult constitutional needle to thread, and no such plaintiffs may be found to exist.  And if you're thinking this "how can you have a constitutional provision that no one can enforce?" question is similar to the dismissal of the "natural born citizen" complaints, well, you're right.  The Constitution's not only a document which the Courts must enforce; some of it can only be done by the President and Congress, and by us as citizens.  Congress acted last night consistently with the spirit of the Ineligibility Clause, and I look forward to the upcoming day when Hillary Clinton is -- legally and constitutionally -- sworn in as the Secretary of State.

Originally posted to Daily Kos on Thu Dec 11, 2008 at 03:10 PM PST.

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