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 short, the Incompatibility Clause bars Representatives and Senators from "holding any office under the United States." In (this) my opening paper, I argue that the phrase "office under the United States" is a term of art referring to statutory or appointed officers, not to the President. In short, the Incompatibility Clause does not bar joint Senate-Presidential office-holding; it bars Senators from working for the President (or being appointed by the President), it does not bar a Senator from being President.

Professor Steven G. Calabresi disagrees. In his response, he states that my position is "utterly implausible." I reply to his reponse, and he offers a rebuttal. This article is my opening statement in the exchange with Professor Calabresi. The focus of our exchange relates to the Oaths and Affirmations Clause, the Impeachments Clause, and the Commissions Clause.

The 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 closing statement or reply 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).

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

The related 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 to Prakash's response is yet to be drafted and posted.

The Calabresi-Tillman exchange appears here under "Download the Paper". The Prakash-Tillman exchange appears below under "Related Files".

[September 28, 2010]