“If you want to tell people the truth, make them laugh, otherwise they’ll kill you.”— O. Wilde

Tuesday, December 29, 2015

Why The Debate on "Office" and "Officers" Matters

Constitutions, statutes, and regulations create public offices, and frequently such legal instruments also create qualifications for those offices. When positive law creates qualifications for elected positions, these restrictions limit the scope of democratic choice. Nevertheless, such restrictions on democratic choice have a long pedigree in a variety of jurisdictions. Adjudications relating to qualifications to public office are not uncommon. Likewise, in the United States, the Constitution sets out qualifications for elected federal officials: i.e., Representatives, Senators, President and Vice President. Such qualifications include, among others, provisions relating to age, citizenship, and residence. Courts and commentators have long debated whether the qualifications in the Constitution’s text are exclusive (i.e., floors and ceilings) or whether they are merely floors, which can be supplemented by additional qualifications imposed by Congress and/or by the States.

Once again, this issue has become topical. Hillary Clinton, a former Secretary of State and former Senator, is a prominent candidate in the upcoming Democratic Party primary elections. These primaries select delegates to a national convention which will choose the Democratic Party’s candidate for the November 2016 popular presidential election. It has been alleged that, during her term of service as Secretary of State, Clinton violated a provision of the federal statute mandating government record keeping. Section 2071 of Title 18 of the United States Code provides:

Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.

Section 2071’s language poses two interesting interpretive challenges.

First, what is the scope of the statute? In other words, does Section 2071’s generally worded “office under the United States” language extend to the presidency?

Second, if Section 2071’s general “office under the United States” language fairly encompasses the presidency, is the statute constitutional? In other words, does Congress have the power to create additional qualifications for the presidency beyond those already expressly stated in the Constitution’s text?

. . .

Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5(1) British Journal of American Legal Studies (forthcoming 2016), available here

My prior post is here: Seth Barrett Tillman, A Critique of Two Left-of-Centre Views of the United States Constitution: Professor Akhil Amar & Professor Lawrence Lessig, The New Reform Club (Dec. 28, 2015, 4:48 AM)

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


Tim Kowal said...

Better to answer the second question first. A statute surely lacks the power to increase or diminish the qualification for President defined in the Constitution. And if that is so, we should not presume the language means to accomplish an absurdity. Instead, it more naturally comports with the concept of "office" as used in the Appointments Clause, to the effect that the Senate may not "consent" to the appointment of officers held in violation of section 2071.

But that raises still another quandary concerning the propriety of such "entrenching rules," i.e., rules that violate the principle that "one legislature may not bind the legislative authority of its successors." In which case, the latter clause of section 2071 could impose no effect apart from a black eye, in a nation who loves its political pugilists.

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