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Why Our Next President May Keep His Or Her Senate Seat: A Conjecture On The Constitution’s Incompatibility Clause
4 Duke J. Const. L. & Pub. Pol’y 107 (2009); 4 Duke J. Const. L. & Pub. Pol’y Sidebar 1 (2008)
  • Seth Barrett Tillman, None
Abstract

In a few months, "We the People" will go to the polls and elect the electors who will elect (or, at least, have an opportunity to elect) the next President of the United States. Short of an act of God or an act of war, it is more likely than not that the next President will be a sitting United States Senator. The expectation is that a Senator/President-elect resigns his or her legislative seat some time prior taking the presidential oath of office. It is widely believed in large and influential academic circles and among the educated public generally that the Constitution requires this result by expressly precluding joint simultaneous Legislative-Executive Branch office holding.

I respectfully dissent. I believe the conventional view is mistaken as a matter of the original public meaning of the Constitution. Although the idea of a sitting Senator holding the office of President is somewhat counter-intuitive, this is one example of the dangers of unexamined intuitions. True, the Constitution does preclude joint Legislative Branch-Executive Branch service. But for incompatibility purposes, the President is not part of the Executive Branch; rather, the (elected) President presides over it, as opposed to (appointed) Executive Branch officers - which are under it. Therefore, a sitting Senator can keep his or her seat while serving as President.

In addition to its primary point, that the President and Vice President are not subject to the Incompatibility Clause, this article makes a few other (subsidiary) points, including: (1) that "officers of the United States" is distinguishable from "officers under the United States" -- the latter is slightly broader, and includes non-presiding legislative officers (along with contractors, low level employees, and special agents in irregular service to the federal government); (2) neither "officers of the United States" nor "officers under the United States" include the President or Vice President; (3) the Ineligibility Clause (a/k/a the Emoluments Clause) prevents members of Congress from being appointed to office (per Article I, Section 6, Clause 2), but does not prevent members from being elected to the Presidency or Vice Presidency or to Congress; (4) Senatorial disqualification following impeachment only extends to appointed office, not elected office (member of Congress, President, or Vice President -- except possibly where the Vice President is appointed per the Twenty Fifth Amendment); (5) offices created per the Appointments Clause can only be created by statute, not by treaty; (6) the Foreign Emoluments Clause does not apply to the President and Vice President (see Article I, Section 9, Clause 8); (7) a President and Vice President even if running for re-election are eligible to serve as an elector under the Elector Incompatibility Clause (see Article II, Section 1, Clause 2); (8) legislative officer succession poses no constitutional difficulties per the Succession Clause; (9) the President is only subject to the Article II oath, but not the Article VI oath; and (10) the President and Vice President are holders of a "public trust" per the Article VI Religious Test Clause.

Comments, queries, correspondence, and further opportunities to present are welcomed.

This paper is posted here and cross-posted at the SSRN link below. The condensed form (which will appear on PENNumbra) is attached at the bottom of this web page as a related document.

This article is part of a four-part Professor Steven G. Calabresi-Tillman exchange on PENNumbra, and a three-part Professor Saikrishna Bangalore Prakash-Tillman exchange on the Duke Journal of Constitutional Law and Public Policy and on DJCLPP Sidebar.

Both sets of articles deal with Senate-Presidential incompatibility under Article I, Section 6, Clause 2 – the Ineligibility Clause (a/k/a the Emoluments Clause) and the Incompatibility Clause.

The Professor Saikrishna Bangalore Prakash-Tillman series appears at …

Tillman’s opening appears on SSRN (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1099355), and on BEPRESS (http://works.bepress.com/seth_barrett_tillman/63/).

Professor Saikrishna Bangalore Prakash’s response appears on SSRN (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1557164).

Tillman’s reply is yet to be drafted and posted.

This article is my opening statement in the Prakash-Tillman exchange.

Additionally, the related Professor Steven G. Calabresi-Tillman series appears at: Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. PA. L. REV. PENNUMBRA 134 (2008), http://www.pennumbra.com/debates/pdfs/GreatDivorce.pdf.

Tillman’s opening appears on SSRN (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1292359), and on BEPRESS (http://works.bepress.com/seth_barrett_tillman/98/).

Professor Steven G. Calabresi’s rebuttal appears on SSRN (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1294671).

Tillman’s reply or closing statement appears on SSRN (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1292334), and on BEPRESS (http://works.bepress.com/seth_barrett_tillman/91/).

Professor Steven G. Calabresi’s closing statement appears on SSRN (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1294671).

The Calabresi-Tillman exchange appears below under "Related Files". My opening paper in the Prakash-Tillman exchange appears here at "Download the Paper".

[September 28, 2010]

Keywords
  • Senate,
  • President,
  • Incompatibility
Disciplines
Publication Date
December 27, 2008
Citation Information
Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution's Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol'y 107-41 (2009), available at http://ssrn.com/abstract=1099355; 4 Duke J. Const. L. & Pub. Pol'y 1-34 (2008), available at http://ssrn.com/abstract=1660547.