Dear Professor Prakash et al.,
Back in 2008, you and I had a short exchange in the Duke Journal of Constitutional Law & Public Policy. You may remember that in that exchange I argued that the Constitution’s varying usage in regard to office and officer was meaningful. Specifically, I argued that the Incompatibility Clause, using “Office . . . under the United States” language, did not reach the presidency (and vice-presidency), and as a result, that clause did not bar a sitting Senator (e.g., Clinton, McCain, or Obama) from simultaneously holding the presidency. In other words, the Incompatibility Clause bars Senators and Representatives from simultaneously holding appointed office (in any of the three branches), but it is not a bar to other elective positions (e.g., the vice presidency and the presidency).
In 2008, you did not agree with my theory.
Today, in 2012, we face a nearly identical question . . . should Representative Ryan win re-election to his House seat and be elected to the vice presidency, can he hold both offices? My position is “yes, he can (at least as far as the Incompatibility Clause is concerned).” In the last four years, I have not heard a peep from you in regard to our 2008 debate. So, I suppose your position has not evolved and you still maintain that the Incompatibility Clause applies to the presidency (and, by implication, to the vice presidency).
But Sai, it may be the same question, but our common knowledge of events circa 1787-1797 is now slightly more advanced than it was in 2008. And although you can still maintain that you are correct about the Incompatibility Clause, if you do, I think the consequence of your maintaining your 2008 position is that you will have to give up on the unitary executive theory (about which you have published from time-to-time). It seems to me your two positions contradict one another.
[In addition to my original letter, which was posted on PrawfsBlawg and The Originalism Blog, I have also attached my responses to comments posted on the blogs, and I have attached my reply to Professor Ramsey.
[August 27, 2013]
Seth Barrett Tillman (via Ethan Lieb), An Open Letter from Seth Barrett Tillman to Professor Saikrishna B. Prakash (and other defenders of the unitary executive theory), PrawfsBlawg (Nov. 5, 2012, 7:48 PM), http://tinyurl.com/bdtqdju ;
Seth Barrett Tillman (via Michael Ramsey), An Open Letter to Defenders of the Unitary Executive, and a Reply to Professor Michael D. Ramsey, The Originalism Blog (Nov. 5, 2012, 11:00 PM), http://tinyurl.com/ajefhhh, http://tinyurl.com/am8uuds;
Michael Stern, May the President Accept a Foreign Title of Nobility?, Point of Order: A Discussion of Congressional Legal Issues (Nov. 8, 2012, 12:56 PM), available at http://tinyurl.com/c4e9qrh ;