Hillary and the Emoluments Clause

http://volokh.com/archives/archive_2008_11_23-2008_11_29.shtml#1227548910

I very recently read an article by John O'Connor on the subject, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89 (1995), so I asked him what he thought. Here's his answer:

The Emoluments Clause provides that "[n]o 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." As I understand it, 5 U.S.C. § 5303 provides for an automatic annual increase in certain federal salaries, including the salary of the Secretary of State, unless the President certifies that an increase in salaries is inappropriate. The salary of the Secretary of State has increased during Senator Clinton's current Senate term, which does not end until 2012. Therefore, under a straightforward application of the Emoluments Clause, Senator Clinton is ineligible for appointment as Secretary of State because the emoluments of that office "have been encreased" during Senator Clinton's current Senate term, and this disability continues until the end of "the time for which [she] was elected, or until January 2013.

I do not believe it affects the analysis that the salary increase occurred as a result of an Executive Order or that the statute creating these quasi-automatic salary increases was enacted prior to Senator Clinton's current term. By its plain language, the Emoluments Clause applies when the office's salary "shall have been encreased," without regard to exactly how it was increased. Indeed, an early proposed draft of the clause included language limiting it to an increase of emoluments "by the legislature of the U[nited] States," and was later revised to encompass any increase in emoluments. It is worth noting that several Framers thought, without much explication, that the clause was too lax as initially drafted. The clause also does not require that a Senator or Representative have voted for the increase.

There's a further discussion about the "Saxbe Fix" such that the salary is reduced to a lower level, which in theory would allow the Senator to be appointed without the emoluments having been "encreased during such time."  The Saxbe Fix has been used before, but never tested in court.  However, by my plain reading of the Constitution, the Saxbe Fix is unconstitutional.  (Professor O'Conner agrees.) Therefore, it follows that my opinion will be ignored and the Hillary will get a Saxbe fix with little controversy.  It's unclear who would have standing to challenge the Saxbe Fix, anyway.  It seems ironic that our first constitutional law professor President would so casually ignore the issue, but he's got a world to save and less than four years before his re-election.