Category: Appointments and Removal

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Steve Calabresi is Deeply Confused

Let me begin by saying that I do not know Professor Calabresi and have nothing against him as a person or a legal scholar. Moreover, the title of this blog post is not meant to suggest that his legal conclusion in the matter we are about to discuss is obviously wrong. I think it is probably wrong, but I do not think it is frivolous or entirely implausible. What I find confused, and frankly a bit unsettling, is the reasoning process that has led Calabresi to this conclusion.

Starting our story at the end, as it were, on September 16, 2023, Professor Calabresi wrote a blog post concluding that because Donald Trump was not and had not been “an officer of the United States” within the meaning of section 3 of the 14th amendment, he cannot be disqualified from future office under that provision. Calabresi favorably notes a recent article by Professors Seth Barrett Tillman and Josh Blackman which addresses this point, although he does not indicate whether his own view on this particular issue was influenced by their work.

As Calabresi acknowledges, slightly more than a month earlier, on August 10, he had written a blog post flatly stating that Trump falls within section 3’s ban on officeholding and therefore “is disqualified from being on any primary or general election ballots next year.” Calabresi says that he has changed his mind because of the “officer of the United States” issue, and he also suggests that he is less certain about whether the events of January 6 constitute an “insurrection” at all (I also have some doubts on the latter point, but that is not the subject of today’s post).

As you may recall from my last post, section 3 presents two issues with respect to the presidency in particular: (1) whether the president is an “officer of the United States” and therefore holds a disqualification-triggering office; and (2) whether the presidency is an “office under the United States” and therefore is an office which a disqualified official is banned from holding. Although Calabresi did not directly address either of these issues in his August 10 post, he implicitly answered both questions in the affirmative. Now, however, he has changed his mind, but only (it appears) as to the first issue. Presumably Calabresi still believes that the presidency is an “office under the United States” for purposes of section 3 (and, as we shall see, for purposes of other constitutional provisions).

Calabresi acknowledges in his September 16 post that he once believed the president is an officer of the United States. He refers to a 1995 article in which he said the “best reading” is that the president and vice president are “officers of the United States” as that term is used in the Appointments and Commissions Clauses of Article II. Steven G. Calabresi, The Political Question of Presidential Succession, 48 Stanford L. Rev. 155, 159 n.24 (1995). One problem with this reading is that the Commissions Clause provides the president “shall Commission all the Officers of the United States” and in historical practice neither the president nor vice president have received commissions, but Calabresi explained that this could “be deemed an oversight.” Id.

 According to Calabresi, his decades of academic work on the presidency have convinced him that this opinion of his “foolish youth” (as he puts it) was wrong and that “the words ‘officer of the United States’ are a legal term of art, which does not apply to the President.” Calabresi does not say when he reached this conclusion, but it is worth noting (as he does not) that he still held his original opinion at least as of 2008. See Seth Barrett Tillman & Steven G. Calabresi, 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).

In The Great Divorce (don’t ask me why it is called that) Tillman and Calabresi debate whether the Incompatibility Clause applies to the president. As readers of this blog are well aware, the Incompatibility Clause provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” According to Tillman, the presidency is not an “office under the United States” and therefore there is no constitutional prohibition against a person serving as president and a member of Congress at the same time. In the debate with Calabresi much of Tillman’s argument was premised on the proposition that the president is not an officer of the United States within the meaning of Article II because the usage of the term in Article II shows it applies only to appointed, not elected, officials. See The Great Divorce, 157 U. Pa. L. Rev. PENNumbra at 137-38 (discussing the Impeachment and Commissions Clauses). If this is so and the terms “officer of the United States” and “office under the United States” should be read coextensively, Tilllman argues, it follows that the Incompatibility Clause does not prohibit joint congressional-presidential officeholding. Id.

 Calabresi’s response to this argument may best be described as bemused incredulity. See id. at 141 (“Seth Barrett Tillman has made an ingenious argument for an utterly implausible proposition.”). Calabresi responds to Tillman with the following points: (1) the presidency is clearly an office, as the Constitution explicitly states on multiple occasions, and every indicia of original public meaning supports the conclusion that it is an “office under the United States” and that the president is an “officer of the United States;” (2) the terms “office under the United States” and “officer of the United States” are not legal terms of art with a specialized meaning different from their ordinary meaning; (3) the usage of “office” and “officer” in legal discourse prior to the adoption of the Constitution was inconsistent with Tillman’s theory because, for example, state governors, whether or not elected, held offices under the state and were officers of the state; (4) Tillman’s theory would lead to normatively implausible results under the Incompatibility Clause (i.e., allowing a sitting president to serve in Congress) as well as other clauses such as the Foreign Emoluments Clause; and (5) Tillman’s theory is inconsistent with uniform historical practice, as exemplified by the fact that no one “in 219 years held the presidency while serving as a member of Congress, and the two sitting senators elected to the presidency, Warren G. Harding and John F. Kennedy, both resigned their senate seats upon becoming President.” Id. at 142-44. (Note: not long afterward Barack Obama and Joe Biden also resigned their senate seats after being elected to the presidency and vice presidency).

With respect to Tillman’s argument specifically regarding Article II’s use of the term “officer of the United States,” Calabresi acknowledged this was a closer question. See id. at 144-45 (noting that the Commissions Clause provides “Tillman’s best argument); id. at 157 (conceding again that Tillman has a “valid point” about the Commissions Clause). Nonetheless, he adhered to the position he had taken in 1995 that the better reading of Article II is that the president and vice president are officers of the United States. In support of that position, Calabresi particularly stresses the language of the Necessary and Proper Clause of Article I, which applies to powers vested “in the Government of the United States, or in any . . . Officer thereof.” Because the president has always been considered an “Officer” within the meaning of this provision, and because it was “highly implausible” that this language would have been interpreted differently than the nearly identical language of Article II, Calabresi argued that the president must be an “officer of the United States” for all purposes. Id. at 142; see also id. at 156 (“Tillman’s inability to differentiate the Necessary and Proper Clause is thus fatal to his thesis.”).

Finally, Calabresi notes that even if the president was not an “officer of the United States” for purposes of Article II, it would not necessarily follow that he does not hold an “office under the United States” for purposes of the Incompatibility Clause and other constitutional provisions because the latter phrase is arguably broader. Id.at 156-57.

At this point it is worth considering what Calabresi has and has not changed his mind about since 2008. It seems clear that he has not changed his view that the president holds an “office under the United States” as that term is used in various constitutional provisions, including section 3 of the 14th amendment. For example, Calabresi notes that he favored the impeachment and disqualification of Trump for the events of January 6. Presumably therefore he believes, contra Professors Tillman and Blackman, that such disqualification would prevent Trump from again ascending to the presidency because it is an “office under the United States” within the meaning of the Impeachment Clause.

Calabresi also still believes (I think) that there was no legal term of art prior to the adoption of the Constitution that excluded elected state officials in the executive branch from being officers of the state (or holding offices under the state). For example, an elected state governor would be an officer of that state within the meaning of the state’s constitution. Moreover, I assume that Calabresi still believes that elected governors and other elected state officials in the executive and judicial branches would qualify as “executive and judicial Officers . . . of the several States” within the meaning of the Oaths Clause in Article VI of the Constitution.

Calabresi has changed his mind on whether the term “officer of the United States” in Article II is best read to apply to the president and vice president. This is perfectly reasonable in my estimation. As Calabresi acknowledged in his prior writings, this is a close question and reasonable arguments can be made on either side. I have previously expressed the view that the president and vice president probably should not be considered “officers of the United States” as that term is used in Article II and so I can hardly criticize Calabresi for coming around to the same position. (Exactly why he changed his mind on this, seeing as the arguments today are no different than they were in 1995 and 2008, though, is a little puzzling).

This situation is different, however, regarding the interpretation of “officer of the United States” outside of Article II. In 2008 Calabresi said that “when the Oath Clause of Article VI requires that all federal and state executive and judicial officers takes oaths to uphold the Constitution the Clause is clearly referring to the President, the Vice President and to state governors as well as to all federal and state judges.” The Great Divorce, 157 U. Pa. L. Rev. PENNumbra at 142-43 (emphasis added). Thus, Calabresi believed the president and vice president were “executive . . . Officers . . . of the United States” within the meaning of Article VI. Presumably he must have changed his mind on this because otherwise it would make no sense for him to claim that “officer of the United States” is a term of art that excludes the president and vice president for all constitutional purposes, but his September 16 post does not mention the Oath Clause or offer any explanation for why he no longer has the opinion he expressed so emphatically in 2008.

On the other hand, I find it difficult to believe that Calabresi has changed his mind about the Necessary and Proper Clause of Article I, when he claimed in 2008 that “[e]veryone for 219 years has thought that the Necessary and Proper Clause uses these words [Officer of the Government of the United States] to refer to the President.” Id. at 142. Furthermore, he stressed that “Congress has enacted lots of legislation over two centuries predicated on the idea that it can carry into execution the President’s executive power because he is an ‘officer’ of the ‘Government of the United States.’” Id. at 156. Surely if Calabresi had changed his mind on such an important issue, he would have at least mentioned it in his blog post.

But if Calabresi has not changed his mind regarding the Necessary and Proper Clause (and the Oath Clause), it is hard to see how he could maintain that “officer of the United States” is a term of art that must be read to exclude the president (and vice president) for all purposes in the original Constitution, much less in an amendment that was enacted many decades later. Calabresi claims that the phrase “officer of the United States” must “presumptively” mean the same thing in section 3 as it does in Article II, but this cannot be right if it means something different in Articles I and VI.

Moreover, apart from the internal consistency of Calabresi’s views on these issues, I have questions regarding the interpretive methodology that leads him to declare so confidently that the Constitution establishes “officer of the United States” as a legal term of art that excludes the president and vice president for purposes of section 3, when Calabresi himself admits that the drafters of section 3 themselves did not understand this to be the meaning of the term. Calabresi concedes that “[t]he Senate in debating Section 3 of the 14th Amendment was of the view that the president is an officer of the United States.” If the Senate did not understand this “term of art,” is Calabresi claiming that the House, the legislatures that ratified the 14th amendment or the public at large did so? I don’t think he is making this claim, and if so he certainly has not produced evidence to substantiate it.

A far more conventional analysis, it seems to me, would be to say that while the ordinary meaning of “officer of the United States” would seem include the president and vice president, Article II’s usage of that term makes it ambiguous as applied to these officeholders. One would then ask what reasons support a narrower or broader construction of the term as used in section 3. For example, would excluding the president and vice president from the list of officeholders who are disqualified from public office if they engage in insurrection or rebellion be a normatively plausible result? Would someone reading the text of section 3 when the 14thamendment was proposed by Congress have understood this exclusion given that the list of disqualification-triggering offices covered all other significant (and many insignificant) federal and state offices? The answers to these questions seem self-evident. If there are countervailing considerations that would support a narrower construction, I have not heard them.

Finally, it seems to me that all law professors or other self-appointed constitutional experts would be well-served by a dose of humility in commenting on section 3, given that there are obviously a host of novel and unsettled issues arising from its potential application to the events of January 6. Declaring confidently on one day that section 3 clearly disqualifies Trump from office and with equal confidence a few weeks later that it does not apply to Trump is a textbook example of what not to do.

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Does Section 3 of the Fourteenth Amendment Apply to State Elected Officials?

Less than a week after the January 6, 2021 attack on the Capitol, I wrote a brief blog post on whether section 3 of the 14th amendment applied to the presidency. (Don’t feel bad if you forgot this- so did I). The relevant text of section 3 is set forth below:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

This language describes two categories or groups of offices or positions. One is the category of previously held offices/positions which will trigger section 3’s disqualification if the official in question, after taking the oath, commits insurrection, rebellion, etc. We will call this category, following the terminology used by Professors Baude and Paulsen, the “disqualification-triggering” offices or positions.

The second category (second in time, although it appears first in the text of section 3) consists of those offices/positions that a previously disqualified official is prohibited from holding in the future. We will call these, following Professor Hemel, the “banned” offices or positions.

My prior post briefly addressed two questions: (1) whether the president is an “officer of the United States” under section 3 and therefore holds a disqualification-triggering office; and (2) whether the presidency is an “office under the United States” and therefore qualifies as a banned office. I predicted, based on a long history of work by Professor Tillman, joined more recently by Professor Blackman, that Tillman and Blackman would answer both these questions in the negative. I also noted, based on my own long history of responding to (mostly) Tillman’s work, that these answers would be wrong, although I allowed that the first question was “somewhat closer” than the second.

As it turns out, my prediction was not entirely correct. Tillman and Blackman do indeed claim that the president is not an officer of the United States and therefore does not hold a disqualification-triggering office, but they expressly decline to take a position on whether the presidency is an “office under the United States” for purposes of section 3. This constitutes progress, I guess, and I congratulate them for not extending what I consider to be grievous error. In the same spirit, I will somewhat soften my position on the first question. Although I am still inclined to think the president is an officer of the United States for purposes of section 3, I think it is fair to treat it as an open question, which I hope to explore further in future posts.

Today, however, I want to address a different set of issues, which have not been discussed in depth by any of the principal commentators on section 3 (at least to my knowledge). Does section 3 apply to state elected officials/positions and, if so, which ones? This question is not only of some current interest in its own right, but the answer has some important implications for the Tillman/Blackman theory that underlies the overall controversy.

Continue reading “Does Section 3 of the Fourteenth Amendment Apply to State Elected Officials?”

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Does Section 3 of the Fourteenth Amendment Apply to the Presidency?

It will come as no surprise to readers of this blog that Professors Tillman and Blackman have written a controversial piece about the current troubles in which, among other things, they reiterate their view that the Constitution’s Disqualification Clause does not bar an impeached, removed and disqualified official from the presidency because that office does not constitute an “Office of honor, Trust or Profit” within the meaning of Article I, § 3, cl. 7. See Blackman & Tillman, Can President Trump be Impeached and Removed on Grounds of Incitement (Jan. 8, 2021) (“The Senate has no power to disqualify a defendant from holding elected federal positions, such as the presidency.”) (emphasis in original).

I will not bore you by restating the reasons why I think this view is very, very wrong. You can read them ad nauseam by following the links in my most recent post on the subject.

The same issue arises, however, in regard to another constitutional provision which, as far as I recall, I have not addressed before. Specifically, section 3 of the Fourteenth Amendment (an obscure provision which is enjoying its moment in the sun) provides:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial office of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

(emphasis added).

I should state at the outset that I am extremely skeptical that President Trump’s behavior, as atrocious and impeachable as it may be, constitutes “insurrection or rebellion” or other conduct covered by this provision. Assuming for the sake of argument that it is, however, the italicized language raises two questions. First, is the president “an officer of the United States” subject to the bar of section 3 if he engages in the proscribed conduct? Second, is the presidency an “office, civil or military, under the United States” which a covered officer is barred from holding?

I assume that Tillman and Blackman would say no to both questions, although I am not entirely sure. Their argument is that the meaning of “officer of the United States” and office “under the United States” as used in the original Constitution applies only to appointed, not elected, offices and therefore excludes the presidency (and vice presidency). Whether they would say that this meaning was understood by anyone as of the time the Fourteenth Amendment was drafted is less clear. As I have pointed out, the view they ascribe (based on highly ambiguous historical practice) to a few members of the founding generation seems to have vanished without a trace by 1834 at the very latest.

It is interesting nonetheless that the only example I have found anyone actually expressing the Tillman/Blackman view (prior to Professor Tillman himself) comes in the debate over section 3 in the Senate on June 13, 1866. During the debate over the draft constitutional language, the following colloquy occurred:

Mr. Johnson. But this amendment does not go far enough. I suppose the framers of the amendment thought it was necessary to provide for such an exigency. I do not see but that any one of these gentlemen may be elected President or Vice President of the United States, and why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation. No man is to be a Senator or Representative or an elector for President or Vice President–

39 Cong. Globe 2899 (1866) (emphasis added).

Here we have a U.S. senator suggesting that the disability imposed by section 3 would not exclude anyone from the “privilege of holding the two highest offices” in the land, even though it on its face applies to “any office, civil or military, under the United States.” Admittedly, its just one man’s opinion, but to my knowledge it is closer than anyone else (pre-Tillman) has ever come to expressly endorsing the Tillman/Blackman view of “office under the United States.”

Naturally a fierce debate ensued:

Mr. Morrill. Let me call the Senator’s attention to the words “or hold any office, civil or military, under the United States.”

Mr. Johnson. Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am; but I was misled by noticing the specific exclusion in the case of Senators and Representatives.

39 Cong. Globe 2899 (1866).

Ok, “oops, I was wrong” might not qualify as a fierce debate, but it is as much of a debate as you will find anywhere on this issue between 1787 and 2008 or so. No doubt if the 39th Congress had any doubt that the language flagged by Senator Johnson was ambiguous, it would have been clarified. After all, there is no chance that the framers of the Fourteenth Amendment intended to prevent former rebels from serving as presidential electors but not as the president. Of course, the same can be said of the framers of the Constitution. Clearly it could not have been intended that a president be impeached, removed from office, and disqualified from serving in any federal office other than the presidency. Similarly, it could not have been intended that presidents be able to receive foreign emoluments or titles of nobility.

The question of whether the president or vice-president is an “officer of the United States” within the meaning of section 3 is somewhat closer. As was pointed out during the same Senate debate, section 3’s language regarding the individuals whose violation of oath triggers the disability tracks the Constitution’s Oath Clause in Article VI, which requires that “all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”

There is a plausible structural argument that the term “officer of the United States” as used in Article II refers to individuals appointed and commissioned by the president, which would exclude the vice president and the president himself. Whether or not this is correct, it does not follow that the phrase used elsewhere in the Constitution is necessarily so limited. For example, while it is true that the president’s oath is separately provided for in Article II, the vice president’s is not; therefore, interpreting Article VI’s reference to “executive . . . Officers . . . of the United States” as excluding the president and vice president would mean the nowhere in the Constitution is the vice president’s oath provided for, a result that Tillman finds a good deal more plausible that do I. And while Tillman’s view of the Oath Clause has some support from a 1974 OLC memorandum written (or at least signed) by Assistant Attorney General Antonin Scalia, as I explain here that memo’s reasoning leaves much to be desired.

It also seems unlikely that the framers of section 3 would have deliberately omitted the president and vice president from the list of officials prohibited from engaging in insurrection and rebellion, although this conclusion seems more reasonable if one assumes their focus was entirely on the immediate past rebellion rather than potential future ones. In short, the argument that the president is not an “officer of the United States” within the meaning of section 3 seems to me to be quite weak, but not as weak as the claim that he holds no “office under the United States” under section 3 or the Disqualification Clause.

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The Berman Firing, Congressional Oversight, and (Lack of) Presidential Accountability for the Exercise of the Removal Power

I don’t envy Andrew McCarthy, the National Review contributing editor who writes about legal affairs. McCarthy is a smart and experienced lawyer who clearly thinks of himself as intellectually honest. But he also seems to conceive his job as explaining the constitutional operation of our government while minimizing references to the president’s massive unfitness for office. This makes intellectual honesty challenging. It’s a bit like submitting a detailed report on the crash of a passenger jet and only casually mentioning that the pilot was a kangaroo.

A case in point is McCarthy’s take on the dismissal of Geoffrey Berman, the interim U.S. attorney for the Southern District of New York (USA-SDNY). In case you had not heard, late Friday, June 19, the Justice Department issued a press release with three announcements by Attorney General Bill Barr: (1) President Trump “intends to nominate” Jay Clayton (currently the SEC chairman) as the permanent USA-SDNY; (2) Trump “has appointed” Craig Carpenito (currently the interim U.S. attorney for the District of New Jersey) to be the “acting” USA-SDNY effective July 3; and (3) Berman would “stepping down” from his position as the interim USA-SDNY.

Berman responded immediately by denying that he was stepping down and implying that he needed to stay on to protect the integrity of the SDNY’s investigations (which include politically sensitive investigations that could implicate the president’s personal or political interests). The next day, June 20, Barr wrote to Berman advising him that “[b]ecause you have declared that you have no intention of resigning, I have asked the President to remove you as of today, and he has done so.”

Noticeably absent from Barr’s letter was any claim that the president had asked for Berman’s resignation or had been involved at all prior to that day. Also unmentioned was any reference to the president’s alleged “appointment” of Carpenito that DOJ had announced the day before. Instead, Barr stated that by “operation of law” Berman’s deputy, Audrey Strauss, would become acting USA-SDNY, noting that “I anticipate that she will serve in that capacity until a permanent successor is in place.” The assurance regarding Strauss’s tenure was reportedly given as a concession for Berman to agree to leave quietly.

To add to the chaos, when asked about Berman’s departure, Trump told the press that he was “not involved.” The White House later “clarified” this statement to acknowledge that Trump had “signed off” on Barr’s recommendation that Berman be terminated. Whether this sign off occurred only after Berman refused to leave is unclear. There has been no other official or unofficial indication that Trump was involved in either Berman’s departure or the botched attempt to appoint Carpenito.

In two columns (June 20 and June 23), McCarthy defends the Trump administration against critics who conceive Berman’s firing to be part of an effort by the president and the attorney general to obstruct justice by derailing particular investigations that threaten Trump in some way. About this he is probably right, but he glosses over the incompetence, dysfunction and lack of accountability that have been so typical of this administration’s “personnel” actions. Continue reading “The Berman Firing, Congressional Oversight, and (Lack of) Presidential Accountability for the Exercise of the Removal Power”

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Scalia, Trump, Tillman and the Foreign Emoluments Clause

Apropos of the debate whether the president holds “any Office of Profit or Trust under [the United States]” within the meaning of the Foreign Emoluments Clause (art. I, § 9, cl. 8), reference has been made to a December 1974 memorandum written by Antonin Scalia, then the Assistant Attorney General for the Office of Legal Counsel. See Memorandum to the Honorable Kenneth A. Lazarus, Assoc. Counsel to the President, re: “Applicability of 3 C.F.R. Part 100 to the President and Vice President” (Dec. 19. 1974). Professors Seth Barrett Tillman and Josh Blackman have suggested that this memorandum is relevant to the debate, presumably in providing support for Tillman’s position that the president is not covered by the Foreign Emoluments Clause. Indeed, Tillman here cites the 1974 memorandum as contrary authority to a subsequent OLC opinion that expressly acknowledges that the Clause applies to the president.

For those unfamiliar with the background, Professor Tillman has long maintained that the president (and vice president) do not hold (1) “any Office of honor, Trust or Profit under the United States” within the meaning of the Disqualification Clause (art. I, § 3, cl. 7); (2) “any Office under the United States” within the meaning of the Incompatibility Clause (art. I, § 6, cl. 2); (3) “an Office of Trust or Profit under the United States” within the meaning of the Elector Incompatibility Clause (art. II, § 1, cl. 2); and, of course, (4) “any Office of Profit or Trust under [the United States]” within the meaning of the aforementioned Foreign Emoluments Clause.

It is fair to say that these claims were greeted with a large degree of skepticism by this blog. See, e.g., here (Disqualification Clause); here (Incompatibility Clause); and here (Foreign Emoluments Clause). At the time, however, the stakes were low with regard to a debate of primarily academic interest.

The stakes are higher now. The president-elect has received some criticism for refusing to divest himself of a large portfolio of international business interests. Among other things, this situation is said to create a high probability or virtual certainty (depending on whom you ask) that Mr. Trump will be in violation of the Foreign Emoluments Clause once he assumes the presidency. This thesis, of course, assumes the Clause applies to the president, and therefore it becomes a matter of some importance to know whether there is anything to Professor Tillman’s position.

Continue reading “Scalia, Trump, Tillman and the Foreign Emoluments Clause”

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Not So Fast, Speaker Winfrey

Is it a “fact” that non-members of the House are constitutionally eligible to serve as Speaker? The keepers of congressional knowledge and precedent (i.e., the Parliamentarians, the House historian, and other recognized experts on this sort of thing) would tell you, with perhaps an unwarranted degree of confidence, that the answer to this question is “yes.”

The basis of this answer seems to be the following: (1) the Constitution says only that the “House of Representatives shall chuse their Speaker and other Officers,” but does not specify any qualifications for these positions; (2) it is well accepted that the House’s “other Officers” (e.g., Clerk, Sergeant at Arms and Chaplain) need not be, and indeed never are, members; (3) although the House has always elected a member as Speaker, an occasional vote for a non-member candidate has been cast without being ruled out of order; and (4) various congressional publications say in passing that a non-member could serve as Speaker. The last point, of course, is a somewhat circular reason as it merely reflects the written assertion by some of the congressional experts already noted.

Personally, I have not questioned this received wisdom, but I haven’t thought much about it either. Now, however, with the House speakership up for grabs, some people are discussing, with more or less seriousness, whether the House could look outside its membership for a candidate. Suggestions have included Newt Gingrich, Arthur Brooks and Oprah.

Some lawyers and scholars argue that allowing a non-member to be eligible for the speakership would violate separation of powers principles by, for example, raising the possibility that the President or Vice-President could simultaneously serve as Speaker.  Professor Schaub also argues that a non-member Speaker would conflict with the constitutional text, particularly the fact that “the Constitution vests its specified legislative powers in Congress, composed of a Senate and a House, each in turn composed of members, elected by the people.” Therefore, she argues, “[l]egislative powers cannot be lodged in the hands of a non-legislative person.”

These arguments are not without force, but it seems to me that they largely go to why the House should not, rather than cannot, elect a non-member as Speaker. Schaub may be right that “it simply never occurred to [the Framers] that someone would take it into his head to contend that the Speaker of the House could be an individual who was not a fellow legislator.” But Professor Tillman is right that the mere fact that the Framers and everyone else expected the Speaker to be a member is not enough to prove that there is a constitutional prohibition on electing a non-member to that position.

This is particularly true when you consider that the Constitution expressly leaves the choice of Speaker up to the House. The Framers may have very well assumed that the House would never consider a non-member as Speaker except in extraordinary circumstances; it doesn’t follow that they saw the necessity to preclude the House from choosing a non-member under any circumstances.

A strong argument against the constitutional eligibility of non-members would depend on showing that the meaning of the word “Speaker” as used in the Constitution was limited to members of a legislative body. As Professor Rappaport notes, it would be a necessary, but not sufficient, component of this argument to show that the speakers of the British House of Commons and state/colonial legislatures were invariably members of the body.

What about the semantic content of the word “speaker” at the time of the framing? Johnson’s Dictionary gives one meaning of “speaker” as “the prolocutor of the commons,” which is very helpful unless, like me, you have no idea what “prolocutor” means. Fortunately, it defines “prolocutor” as “the foreman; the speaker of a convocation.” And it defines “foreman” as “the first or chief person.” So one might argue that the “speaker” of a legislative body is the first or chief person of that body, and therefore necessarily a member (as the foreman of a jury is necessarily a member). Not a terrible argument, but hardly a slam dunk either.

In short, the question of whether a non-member can be Speaker remains an open constitutional question (the House never having had occasion to address it in a serious way) and the correct answer is less than obvious, at least to me.

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A Tenuous Recess Appointment in Virginia

An interesting recess appointment issue has arisen in the Commonwealth of Virginia. Article VI, section 7, of the Virginia constitution provides that justices of the state supreme court, who serve for 12 year terms,  “shall be chosen by the vote of a majority of the members elected to each house of the General Assembly.” Under Article V, section 7, the constitution also provides that “[t]he General Assembly shall, if it is in session, fill vacancies in all offices which are filled by election by that body.”

The governor, however, has the “power to fill vacancies in all offices of the Commonwealth for the filling of which the Constitution and laws make no other provision.” Va. Const., art. V, § 7. This includes making temporary appointments to fill supreme court vacancies when the General Assembly is not in session: “Gubernatorial appointments made to fill vacancies in offices which are filled by election by the General Assembly . . ., made during the recess of the General Assembly, shall expire at the end of thirty days after the commencement of the next session of the General Assembly.” Id.

These provisions came into play earlier this year when a sitting justice of the Virginia Supreme Court (LeRoy F. Millette, Jr.) announced his retirement effective at the end of July. Because the General Assembly was not in session, Governor McAuliffe recess appointed Fairfax Circuit Court Judge Jane Marum Roush to fill the vacancy on a temporary basis. No one disputes that this was within the governor’s power under the above-cited provisions.

Matters became more complicated, though, when McAuliffe called a special session of the General Assembly to consider revising the state’s congressional districting map, which had been struck down by the federal courts. See Va. Const., art. IV, § 6 (“The Governor may convene a special session of the General Assembly when, in his opinion, the interest of the Commonwealth may require . . . .”). The General Assembly convened on August 17, 2015, pursuant to the governor’s call.

Once the special session convened, the General Assembly undeniably had the power to elect a “permanent” (i.e.. for the remainder of the 12-year term) replacement for Justice Millette. Republicans in the legislature attempted to elect another judge to fill the seat, but this move was blocked in the senate. The senate then voted to adjourn sine die. The house, however, neither adjourned nor consented to the senate’s adjournment.

Everyone agrees that when the General Assembly convened on August 17, it commenced the “next session” of the General Assembly following Roush’s recess appointment. Thus, the thirty-day clock started on August 17, and Roush’s appointment expired on September 16.

The controversy centers on whether the senate’s vote to adjourn sine die has ended the General Assembly’s special session. If not, the General Assembly remains in session and retains the power and responsibility to fill the seat that Judge Roush had temporarily occupied.

This is the view of the speaker of the Virginia House of Delegates. In a letter to the governor, the speaker relies primarily on the following provision of the Virginia constitution: “Neither house shall, without the consent of the other, adjourn to another place, nor for more than three days.” See Va. const., art. IV, § 6. This “clear, unambiguous and emphatic” language, according to the speaker, establishes that the senate cannot unilaterally end the General Assembly’s session. Thus, the senate’s adjournment sine die was ineffective and the General Assembly remains in session. Under the speaker’s position, the General Assembly’s session would not end until both houses agree to adjourn or until “dissolution by the efflux of their time,” which would presumably occur at the beginning of the new legislative session in 2016. Cf. House Rules and Manual § 590 (Jefferson’s Manual of Parliamentary Practice).

The governor’s position, explained by his counsel Carlos L. Hopkins, is otherwise. Hopkins maintains that the senate’s adjournment sine die was effective. His primary argument is that the adjournments clause relied on by the speaker applies only to regular sessions, not to special sessions. As an additional (or possibly alternative) ground, he contends that “the lack of continuous activity or remaining business before the General Assembly argues against the body continuing to remain in session.”

Based on the legal position that the General Assembly was no longer in session, the governor gave Roush a second recess appointment after her first one expired.

Key to assessing these competing claims is understanding the history of the relevant provisions of the Virginia constitution and their relationship to the corresponding provisions in the U.S. Constitution. I do not purport to be an expert on the Virginia constitution, but I am well acquainted with the law and practice of recess appointments at the federal level (click on the “Recess Appointments” category to the right if you don’t believe me).

This background plus the research set forth below convinces me that the Virginia adjournments clause applies to special sessions and thus the senate’s adjournment on August 17 was ineffective. The argument that the General Assembly is no longer in session because it has ceased to conduct any business is somewhat stronger, but, for the reasons set forth below, the better view is that the General Assembly remains in session. Accordingly, Governor McAuliffe’s second recess appointment of Judge Roush appears to be invalid.

Continue reading “A Tenuous Recess Appointment in Virginia”

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Professor Seth Barrett Tillman: Hillary Can Run from Jail

(see update below) More precisely, Tillman argues here that any attempt to disqualify former Secretary Clinton from the presidency based on conviction of a crime, including 18 U.S.C. § 2701 (which provides that anyone convicted “shall forfeit his office and be disqualified from holding any office under the United States”), would be unconstitutional. FWIW, I think he is right.

Now if Clinton were to be elected to the presidency while actually serving time in prison, a different set of issues would be presented. But I think we can cross that bridge when we come to it.

(Clarification: Tillman does not believe that section 2701’s disqualification language is unconstitutional, but he believes it would be unconstitutional if it were intended to apply to the presidency and other elected positions. In part for this reason, he would interpret the “office under the United States” language as not applying to elected positions).

Update: former Attorney General Mukasey, to whom Tillman was in part responding, has emailed Professor Eugene Volokh to acknowledge “on reflection, … Professor Tillman’s [analysis] is spot on, and mine was mistaken…. The disqualification provision in Section 2071 may be a measure of how seriously Congress took the violation in question, and how seriously we should take it, but that’s all it is.” 

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Quinnipiac Law Review Symposium on the Disqualification Clause

A forthcoming issue of the Quinnipiac Law Review features four articles responding to Benjamin Cassady’s “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209 (2014). The editors were kind enough to ask me to write the foreword, which you can find here. It’s extremely hilarious and entertaining. (Not really).

The articles by Peter Charles Hoffer, Brian C. Kalt, Buckner F. Melton, Jr. and Seth Barrett Tillman are well worth reading.

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Gaming out the Coming Confirmation War

There is a reasonable possibility that the Republican-controlled Senate will refuse to confirm any of President Obama’s nominees (or any such nominees who fall into particular categories) in the next Congress. By refusing to confirm nominees, the Republicans would be remedying (it might be argued) the illegal use of the “nuclear option” last year, which allowed Senate Democrats to confirm numerous nominees who otherwise would have been blocked by Senate rules. Senator Ted Cruz has also proposed that the Senate refuse to confirm any Obama nominees, except those in “vital national security positions,” as a response to the executive order on immigration announced this week.

Were this to occur, the issue of recess appointments may again rear its ugly head. To my knowledge, there are currently no recess appointees serving in the administration. It is possible that the President could make recess appointments during the lame duck period, but I assume that House Republicans will foreclose this by refusing to adopt any adjournment resolution that might open the door to such appointments. Instead, each house will (I am guessing) formally adjourn for no more than three days at a time, holding pro forma sessions when necessary for the remainder of the 113th Congress.

One might assume that this pattern would continue for the 114th Congress. However, if the Senate is embargoing most or all Obama nominees, the congressional leadership may see an advantage in allowing the administration to use recess appointments as a safety valve to fill critical or emergency vacancies. If that were the case, the House and Senate would “recess” (which now should be taken as a technical term meaning a concurrent adjournment of both houses for more than three days) from time to time, allowing Obama to make recess appointments during this period.

Any recess appointments made subsequent to the commencement of the first session of the 114th Congress (scheduled for January 6, 2015) would last until the end of the next Senate “session,” which, according to the conventional wisdom endorsed by the Supreme Court in Noel Canning, would normally mean that recess appointees would serve until the end of the Obama administration.

But is this necessarily the case? Professor Seth Barrett Tillman, in a colloquy several years ago with Professor Kalt, argues that the Senate may terminate a recess appointment simply by adopting a resolution declaring its session to be at an end and then promptly re-convening in a new session. Kalt disagrees, contending that both the House and Senate must act together in order to end a session and contending that even this would be a “constitutional impropriety” because it would involve the House in matters relating to appointments and confirmations.

I think Kalt is clearly right that once Congress convenes, both the House and Senate must agree before the session can be ended. It should also be noted that the administration may argue (incorrectly, in my view) that convening a new session of Congress prior to the constitutional default date requires enactment of a law.

Unlike Kalt, though, I see no constitutional impropriety in the House and Senate deciding to formally recess, say, twice a year, once in the summer and once for the Christmas holiday, as clearly intended by the Laws of Nature and of Nature’s God. During these recesses, the President could make recess appointments that would last until the next recess (i.e., the end of the next session). Adopting such “Tillman adjournments” would give the President the ability to fill critical vacancies while limiting the duration of recess appointments to prevent abuse. It would also re-establish the “recess” as the period between “sessions,” as clearly intended by the framers.

The President could make successive recess appointments to keep a particular vacancy filled. But he could not re-appoint the same individual to fill the vacancy, at least not if that person wanted to be paid.