CNN: No one has Standing to Enforce Constitution

CNN legal analyst Jeffrey Toobin says that the Constitution will not “be an impediment” to Hillary Clinton becoming Secretary of State even though Article 1, Section 6 specifically – and without exception or condition – prohibits her appointment.

Clearly Prohibits Clinton’s Appointment to the Cabinet

Article 1, Section 6 of the Constitution says the following: “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 increased during such time.”

In other words, if the salary for a US civil office is increased during the term of a Senator or Representative, that congressman may not be appointed to that office until his term in office expires. No exceptions.

Since Senator Clinton was elected to the Senate in 2006 for another six-year term, and since President Bush raised the salaries of cabinet officials – including the Secretary of State – this year, this rule applies to her.

Constitution is Supreme Law of the US

You may not like this rule. You may not think it necessary. That’s fine. Unfortunately, it is in force and the constitution is the supreme law of the United States. There is simply no way around this. The constitution does not provide any conditions or exceptions to this rule.

CNN: Na Na, You Can’t Catch Her

“There are many ways around this problem,” CNN legal analyst Jeffrey Toobin noted. “One is for Congress to vote a lower salary. Another way is for Hillary Clinton simply to accept a lower salary. Another way is simply to ignore the problem on the idea that no one has the right, has the standing, to sue to stop her from being secretary of state.

Mr Toobin is saying that no one is harmed by violating the Constitution, so they can get away with it.

Toobin’s Double Standard

This is the same Jeffrey Toobin who, back in March, objected to then New York Governor Eliot Spitzer’s use of prostitutes, saying:

I mean, I think, if this were a consensual affair with a woman who was not his wife, I think that was — that would be one thing. But, you know, maybe we should change the laws, but the laws are on the books.

I mean, I think it is — it may be a victimless crime, but it is a crime, and a former attorney general can’t pretend that it isn’t.

Toobin is happy to argue that violating the Constitution in this case harms no one, but just nine months ago felt the law – even a victimless crime law – should be enforced even though no one was being harmed.

You Can’t Undo the Salary Increase

In any case, the argument that Congress can lower the Secretary of State’s salary or Clinton can just accept a lower salary is a non sequitur. As you can see above, the Constitution does not state that this rule fails to apply if the salary is lowered.

Do we Still have a Republic?

While this is a minor matter, it’s just another in a long series of violations of the Constitution that beg the question: “Do we still have a republic?” If our government can not respect the Constitution, the law or even the opinion of its constituents, do we have any basis for continuing to believe that the United States is still a constitutional republic?

Interesting Discussion at Reddit

By the way, you might be interested in reactions to this at Reddit. While the lawyers explain, the liberty-lovers fume. :)

Photo credit: umjanedoan. Photo license.

By George Donnelly

I'm building a tribe of radical libertarians to voluntarize the world by 2064. Join me.

6 replies on “CNN: No one has Standing to Enforce Constitution”

Did you have an objection to the legal analysis or were you just pissed off? The issue of Clinton being Sec. of State is one of legal standing to sue in a civil action. For a civil action you need to show that you were personally harmed. The issue with Spitzer was a criminal infraction and the state files those and does not have to show that a particular individual was harmed. There is no double standard and if there was, it has nothing to do with Toobin and everything to do with the American legal system.

One “does not have to show that a particular individual was harmed” in order for a criminal infraction to take place?

I thought a crime required 3 things: someone acting, harm being caused, someone being acted upon.

There is a double standard because Mr Toobin says that any law on the books must be respected in one case, but that in another it’s ok to violate the supreme of the land because no one is getting hurt.

And to answer your first question (bait really): both. Since when is it ok to violate the constitution?

Obviously not all crimes require a harmed party: prostitution is the perfect example since it is illegal in all 50 states (Nevada it is legal in some counties in a licensed establishment). And, again, the issue of someone harmed has to do with bringing a civil suit. You have to show standing and that generally means you have to show that you were individually harmed. That is how the law works and Toobin was accurately presenting it. You may complain about Toobin, but he seems to have gotten the law right. Nor does he say it is OK to violate the constitution. He says that there are ways around the prohibition (reducing the salary is the one used in the past). And that if they solve the problem, then Clinton can still take the job. Not that it is “OK’, just that no one will have standing to sue.

See Matt’s post above, for it is correct.

“I thought a crime required 3 things: someone acting, harm being caused, someone being acted upon.”

No, no, and no. A crime is merely a violation of a law for which there exists a criminal penalty for any violation thereof. Action is not required (some crimes consist solely of inaction), no harm need be identified (harm is a requirement for a tort, not a crime), and no one need be acted upon (for example, speeding).

There is a fundamental difference between criminal and civil law, and Mr. Toobin’s (and Matt’s) analysis are correct — civil actions require standing, and it is unlikely that anyone would have standing to bring a civil action of this nature. Criminal actions do not require standing, as the state would have “standing” as a matter of law.

Show me the basis in the constitution for “getting around” this. Just because they broke the law in ’09,’73 and ’92 does not mean they’re right when they do it in ’08.

I can commit murder and get away with it once, but that doesn’t mean it’s ok to do it again.

Nor does he say it is OK to violate the constitution.

He’s quite content to render a legal opinion that justifies violating the constitution. Seems like he is saying it’s “OK” to me.

Mala prohibita is bs. Yeah, yeah, it’s “the law”. But victimless crimes are not crimes at all.

You guys are so focused on the law that you’re missing the point. How is it that our government can violate the supreme law of the land and the courts can render it moot by saying no one person was harmed? That’s a bunch of legal shenanigans.

Thanks for commenting.

criminal actions do not require standing? BUNK
You have specific intent crimes; battery, robbery, rape…
You have crimes against society like prostitution and others. One involves intent against a person(s), the other involves intent against society as a whole. With every crime intent is a key element:
“guilty knowledge or mens rea was a necessary element in the proof of every crime” at common law, it is presumed that the legislature also intends to include a guilty knowledge element in its criminal statutes, absent an express statement to the contrary. Second, criminal statutes that fail to include a mens rea element usually raise due process concerns, and courts are “obligated to construe statutes in a manner that avoids holding a statute unconstitutional.”
To have standing you must prove Clinton or her appointee knowingly violated the Constitution and you, or society was harmed.

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