Rumor has it...

...That President-elect Obama wants Hillary Clinton for Secretary of State. Not that I think she wants the gig anyway, but there's a problem: Hillary has been a Senator since 2000, and was reelected in 2006. When was the last time the Secretary of State's pay, set by a commission pursuant to 5 U.S.C. § 5312, was raised? Was it in the last two years? If so, the ineligibility clause may bar her appointment.

(The same problem dogs several Senators rumored to be under consideration for Obama administration posts.)

Added: In another place, commenter Skyler suggests that the Secretary of State has received only a Cost of Living Allowance (COLA) increase, not a salary increase, and invokes parity of reasoning to the 27th Amendment, which he says has been held not to bar such COLA increases. A few problems with this. First, the case that he's referring to, Shaffer v. Clinton, 54 F. Supp. 2d 1014 (D. Colo. 1999) was reversed on appeal for want of standing, 240 F.3d 878 (10th Cir. 2001), extinguishing the district court's ruling on the merits, see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).

Second, the difficulty with comparing the 27th Amendment to Article I § 6 is that they use different words. The former requires an election to take place before a law "varying the compensation" of members of Congress goes into effect; the latter enjoins the appointment of a member of Congress to a civil office under the United States "the emoluments whereof shall have been increased during such time." The "emoluments" of an office include compensation, United States v. New Jersey, 194 F.3d 426 (3rd Cir. 1999) ("'emolument'" is defined to include salary received from employment"), but are not limited thereto, McLean v. United States, 226 U.S. 374 (1912). Article II § 1 provides that "[t]he President shall, at stated times, receive for his services, a compensation ... and he shall not receive within that period any other emolument from the United States, or any of them" (emphases added). Hamilton, in The Federalist, No. 73, referred to the discretionary power of Congress "over the salary and emoluments of the Chief Magistrate" (emphasis added). And Article V of the Articles of Confederation provided that no delegate to Congress could hold "any office under the United States, for which he ... receives any salary, fees or emolument of any kind." Thus, even if a COLA is not an increase in compensation, it wouldn't necessarily follow that it is not an increase in the emoluments of an office.