This issue was covered this morning on CNN by their legal reporter, Jeffrey Toobin. He was laughing over the blogged report that there would be a Constitutional block that would prohibit Hillary Clinton from serving as Secretary of State. He explained the origin of the amendment was to prevent self-dealing by members of Congress and opined that like many laws that made sense a couple of hundred years ago, they don't have much application in current times.

Toobin went on to opine that the problem with the Constitutional amendment regarding emoulments is that it's unenforceable with the possible exception of a vote of the Congress. He went on to explain that the Constitution did not provide for the enforcement of this type of amendment and that the only parties that could litigate the issue would be those considered to have "standing" by a federal court. He said he couldn't think of any party that would be considered to have such standing. Further, he opined, he couldn't imagine any federal judge or the Supreme Court agreeing to hear this case.

He also explained that the same thing happened when President Richard Nixon wanted to appoint Senator William Saxbe as the United States Attorney General from his position as a United States Senator from Ohio. Saxbe had been a Senator when the Congress passed a pay increase from for Cabinet members. Congress eventually allowed the appointment when it accepted Nixon's request to lower the attorney general's salary to its pre-1969 level, an action which has become known as the "Saxbe solution".

Jimmy Carter used the fix to appoint Edmund Muskie as his Secretary of State. However, during the Ronald Reagan administration, the solution was deemed inappropriate for the appointment of Orrin Hatch to the United States Supreme Court.

The issue came up again when as he was leaving office, President George H.W. Bush approved a Saxbe fix so that Lloyd Bentsen could move from the Senate to take the job of Treasury Secretary during the Clinton administration. Ten Democratic Senators voted against Bush's use of the ploy on constitutional grounds. The logic behind objections to the Saxbe fix is that an increase and offsetting decrease are still unconstitutional. However, the common interpretation that has traditionally carried the Congressional majority is that the legislative intent was that net increases are the relevant consideration.

My guess is that this whole emoulments thing will be a non-event, just as it has been in several other recent sitautions.