"There is always a philosophy for lack of courage."—Albert Camus

Friday, August 05, 2016

Office and Officer: Legal Change as Darwinian Evolution, Punctuated Equilibrium, and/or Preference Cascade


“Seth Barrett Tillman has made an ingenious argument for an utterly implausible proposition. He claims that Presidents of the United States can serve simultaneously in Congress as senators or representatives.”
Steven G. Calabresi, Rebuttal, Does the Incompatibility Clause Apply to the President?, in 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, 141-45 (2008).

“To occupy an office under the United States is to occupy an office created under the authority of the United States. Because the President occupies an office created under the authority of the United States, he occupies an ‘Office under the United States.’ The Constitution uses the phrase ‘Office under the United States’ or its equivalents multiple times to distinguish federal officers from officers under the authority of a state, not to distinguish, in a highly obscure manner, the President from other officers.”

“Tillman further declares that Presidents have never commissioned either themselves or their corresponding Vice-Presidents. Unfortunately, he offers no evidence to support any of these propositions, but merely asserts them as fact. He neither cites any of Washington’s contemporaries nor cites any historians who claim that Washington never commissioned himself. That no physical evidence of such a commission exists, however, certainly does not prove that the President never issued one.”
Saikrishna Bangalore Prakash, Response, Why the Incompatibility Clause Applies to the Office of President, 4 Duke J. Const. L. & Pub. Poly 143 (2009) (footnotes omitted).

“Professor Seth Tillman argues that the Incompatibility Clause itself does not apply to the president, only to officers serving under the president.... But we do not agree with Tillman ....”
Michael C. Dorf & Lisa T. McElroy, Coming Off The Bench: Legal and Policy Implications of Proposals to Allow Retired Justices to sit by Designation on the Supreme Court, 61 Duke L.J. 118 n.151 (2011).

“Seth Tillman has made a good case that officers ‘under the authority of the United States’ in the Emoluments Clause are not the same set as officers ‘under’ or ‘of’ the United States, and that people should be careful about treating these different phrasings as though they are necessarily identical.

Brian C. Kalt, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies 212 n.16 (2012)

“Tillman has persuaded me that, standing alone, the text and early history of the Constitution are probably best read to permit a single person simultaneously to serve in Congress and as either President or Vice-President.”

It does not strike me ... that [President Washington] would have lightly interpreted the Foreign Emoluments Clause in the manner Tillman suggests.
[T]he President cannot recess appoint [the Vice President] and the President does not commission [the Vice President].”
Roy E. Brownell II, The Independence of the Vice Presidency, 17 NYU J. Leg. & Pub. Pol’y 297, 308 n.40 (2014) (footnote omitted).

“Tillman’s primary criticism of Teachout is that she reads ‘Person holding any Office of Profit or Trust’ in the Foreign Emoluments Clause to include elected representatives. Tillman does not.... Tillmans carefully argued point ....”
Lawrence Lessig, The 2013 Jorde Lecture, What an Originalist Would Understand ‘Corruption’ to Mean, 102 Calif. L. Rev. 1, 5 n.12 (2014).

“This prohibition [in the Incompatibility Clause] may not extend to the President.”
Derek T. Muller, Scrutinizing Federal Electoral Qualifications, 90 Ind. L.J. 559, 564 n.21 (2015).

“As Seth Tillman has argued at length, the Emoluments Clause does not cover members of Congress, and perhaps not even the President and Vice President.”
        John O. McGinnis, Neutral Principles and Some Campaign Finance Problems, 57 Wm.                & Mary L. Rev. 841, 905 n.336 (2016).

“Interestingly, vice presidents may not be constitutionally required to take an oath, since their office isn’t mentioned in either the Article II Presidential Oath Clause or the Article VI Oath Clause.”
Richard Re, Promising the Constitution, 110 Nw. U. L. Rev. 299, 338 n.155 (2016).

Professor Tillman’s theory makes sense of patterns that most of us never saw. It brings order out of chaos. That is not to say that his position has been conclusively proven. But at this point, I think he has singlehandedly shifted the burden of proof.

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman )  


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