First, I'll quote the section of the Constitution that applies:
Pete Williams, of the NATIONAL BARACK CHANNEL wrote that many legal scholars believe this to be President-elect Obama's first violation of the Constitution. Professor Michael Stokes Paulsen, a Constitutional law expert at the ST. THOMAS SCHOOL OF LAW in Minneapolis told NBC, "The content of the rule here is much broader than its purpose, and the rule is the rule; the purpose is not the rule." The above quote from the Constitution is very clear that no Senator or Representative can be appointed to a job if the salary for that job had been raised during the Senator's or Representative's term of office. In this case, this prohibition applies. The salary for all Cabinet officers was raised from $186,600 per year to $191,300 per year after Hillary was elected to the Senate.
This is not without precedent. A number of presidents in the past have done the same thing from William Taft to George H. W. Bush. The norm is for Congress to reduce the salary of the job back to what it was so the nominee can take it without receiving the benefit of the pay increase. This procedure, even though it goes at least as far back as WILLIAM TAFT (1909 -1913), has become known as "The Saxbe Fix" after former President RICHARD NIXON's nomination of Senator William Saxbe for attorney general. According to the WASHINGTON POST in 1973, ten Senators who were all Democrats, voted against the Saxbe nomination on Constitutional grounds. SENATOR ROBERT C. BYRD , D-West Virginia, who is the only remaining Senator of the ten, said at the time, "we should not delude the American people into thinking a way can be found around the Constitutional obstacle." I've searched the internet and also checked Senator Byrd's site to see if he had any reaction to this. I have found none. Could it be the difference is former President Nixon was a Republican and President-elect Obama is a Democrat?
Another question was raised about who would enforce this. JUDICIAL WATCH has filed a complaint, but realistically I don't think it will go anywhere. If it ended up in the courts, there are too many activist judges that are Democrat-friendly. Jeffrey Toobin, who appeared on CNN recently, agreed (not with my observation about the activist judges of course!) I agree that this is unenforceable as an individual can't bring a lawsuit, or anyone else for that matter. Click HERE to watch the interview. Just ignore the snideness and poking fun at Judicial Watch which is typical of the Clinton News Network anyway.