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Abstract:
SYNOPSIS: U.S. Constitution: art. I, S. 7, cl. 3 reads:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Madison, in his Notes on the Debates in the Federal Convention (Aug. 15 & 16, 1787), said it meant the following:

Every [bill by whatever name Congress calls it] to which the Concurrence of the Senate and House of Representatives may be necessary [because it has legislative effect] (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of [other] Bill[s] [properly stylized when enacted per Art. I, S. 7, cl. 2].

Thus, this clause is usually called the residual presentment clause - or, the second presentment clause: it ensures presentment in spite of feared Madisonian legislative legerdemain attempting to manipulatively bypass the president's veto.

I have good reason to believe Madison wrong. Here is the view put forward by a Commonwealth parliamentarian with whom I corresponded on this question. He is very well informed with regard to 18th century British and colonial parliamentary and administrative (treasury) practices. Indeed, my research relied extensively on contacts with foreign parliamentary officers, legislative clerks & secretaries.

Every [final] Order, Resolution, or Vote [of a single house of Congress] to which the Concurrence of the Senate and House of Representatives may be necessary [as prior statutory authorization] (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect [as a regulation per the prior organic act], shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill [which is a different case].

This new meaning stands our separation of powers jurisprudence on its head. It means the Supreme Court's holding in INS v. Chadha - broadly speaking - was fundamentally misconceived. Presentment is necessary, but not bicameralism, where single house orders are first authorized by a prior statute. At a deeper level it means that our interpretive community - judges, legal academics, academics in related fields (government, political science, and history), and lawyers generally - have forgotten what a clause of the Constitution meant, and that recovery of lost meaning required going to a foreigner!

My opening article appeared at: Tillman, A Textualist Defense, 83 TEXAS LAW REVIEW 1265-1372 (2005), also appearing at, http://ssrn.com/abstract=475204. Professor Gary S. Lawson's response appeared at: Lawson, Comment, Burning Down the House (and Senate), 83 TEXAS LAW REVIEW 1373 (2005), also appearing at, http://ssrn.com/abstract=556789. I replied at: Tillman, Reply, The Domain of Constitutional Delegations under the Orders, Resolutions, and Votes Clause, 83 TEXAS LAW REVIEW 1389-97 (2005), also appearing at, http://ssrn.com/abstract=658003.

orders, resolutions, votes, resolves, presentment, Hollingsworth, Chadha

Abstract:
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 addition to its primary point, that the President and Vice President are not subject to the Incompatibility Clause, this article makes a few other (subsidiary) points, including: (1) that "officers of the United States" is distinguishable from "officers under the United States" - the latter is slightly broader, and includes non-presiding legislative officers (along with contractors, low level employees, and special agents in irregular service to the federal government); (2) neither "officers of the United States" nor "officers under the United States" include the President or Vice President; (3) the Ineligibility Clause (a/k/a the Emoluments Clause) prevents members of Congress from being appointed to office (per Article I, Section 6, Clause 2), but does not prevent members from being elected to the Presidency or Vice Presidency or to Congress; (4) Senatorial disqualification following impeachment only extends to appointed office, not elected office (member of Congress, President, or Vice President - except possibly where the Vice President is appointed per the Twenty Fifth Amendment); (5) offices created per the Appointments Clause can only be created by statute, not by treaty; (6) the Foreign Emoluments Clause does not apply to the President and Vice President (see Article I, Section 9, Clause 8); (7) a President and Vice President even if running for re-election are eligible to serve as an elector under the Elector Incompatibility Clause (see Article II, Section 1, Clause 2); (8) legislative officer succession poses no constitutional difficulties per the Succession Clause; (9) the President is only subject to the Article II oath, but not the Article VI oath; and (10) the President and Vice President are holders of a "public trust" per the Article VI Religious Test Clause.

This article appeared in the Duke Journal of Constitutional Law and Public Policy Sidebar in 2008 (available on Westlaw, forthcoming on LexisNexis). It also appeared in the Duke Journal of Constitutional Law and Public Policy in 2009 (only available in individualized reprints, and on LexisNexis).

President, Senator, Incompatibility

Abstract:
The Federalist Papers ill serves judicial opinion writing when cited for anything but analyzing the largest constitutional structures and their purposes - as opposed to the Constitution's details, which, although discussed, were not the main subject matter of contention between those supporting and those opposing ratification. Moreover, modern judicial craftsman cannot assume that each and every paper is free of error. They are not. Across the Papers are both minor and major errors of various sorts; thus, the Papers must be read and analyzed (as any other document must be) rather than casually cited (as if each and every Paper is free of defect) for the point under discussion. And, lastly, blithely relying on the rationales put forward by the Papers should not preclude our realizing that not only are some passages of the Constitution in deep tension, but rather, some passages are logically incoherent. Under these circumstances, all rationales put forward - those in the Papers included - are equally problematic.

This paper is largely written in a comic mode so as to be more accessible to the generalist lawyer and lay reader - the same audience to whom the Papers were originally addressed. Additionally, this paper also explores some undiscussed aspects of House and Senate contingency elections in the event of the failure of the electoral college to select a President and/or a Vice President.

Constitutional law, The Federalist Papers, interpretation, error, quorum requirements, size of the legislature, House and Senate contingency elections for President and Vice President, function of tie-breaking vote of Vice President, electors selected by state legislatures and not by the people

Abstract:
The Founders, the authors of the Constitution of 1787, much like you and me, were flesh-and-blood human beings. As a result, we expect to find errors and exaggeration in their written works. There is nothing new about that insight. But one alleged error has always struck me as somewhat different from other alleged errors. I am speaking of Hamilton's 1788 publication: The Federalist No. 77. There he wrote:

IT HAS BEEN MENTIONED as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.

This is the enigmatic great white whale among Founding-era documents.

Partisans of Senate (or congressional power) agree with Hamilton (or, at least, they think they agree with Hamilton). These commentators look back to the Tenure in Office Act and to any number of statements made on the floor of the House when statutory removal was first debated in 1789 -- all purportedly consistent with Hamilton's statement here. Partisans of presidential power disagree with Hamilton (or, at least, they think they do). They affirm that Hamilton erred. These commentators look to Myers v. United States and to statements made by Madison on the floor of the House during the statutory removal debates. The consensus view, nay - the universal view, is that Hamilton was speaking to the issue of the "removal" of federal officers.

However, this understanding of The Federalist No. 77, the standard view, the view that Hamilton was speaking to "removal," creates as many problems as it might resolve. And this is true without regard to whether or not you think Hamilton correct or erred. First, the standard view is puzzlingly inconsistent with everything we know about Hamilton, the premier Founding-era spokesman for energy and unity in the Executive. How is it that he would concede a role for the Senate in regard to the removal of federal officers, if a contrary view were even remotely tenable? Second, Hamilton's opining on the scope of the removal power is inconsistent with his plan for and the purpose of The Federalist. His plan for The Federalist was to discuss the defects of the then-current regime, the government under the Articles, the need for a more energetic government, and finally, to provide an article-by-article, clause-by-clause defense of the newly proposed Constitution of 1787 as consistent with the principles of Republican government, liberty, and property. Removal is simply not expressly addressed in the Constitution. To bring up "removal" is just bad tactics - why open up that can of worms, particularly where one's conclusion lacks direct textual support or any closely reasoned argument. Was Hamilton really such a poorly skilled tactician and propagandist? There is a third problem with the standard view .... This problem is not historical, but textual. If you read Hamilton's statement, you will notice that he does not actually use the word "removal" or any variant on "removal." Rather, he uses the word "displace." And that is the key to this ancient intellectual puzzle. Hamilton was not speaking to the power of removing federal officers, rather he was speaking to who had authority to displace federal officers. The two words are akin, but they are not at all times and for all purposes the same.

Puzzle is now cited at: Brief of Law Professors as Amici Curiae in Support of Petitioners at viii, 14 n.6, Free Enterprise Fund v. Public Company Accounting Oversight Board, 2009 WL 2372919, 2009 U.S. S. Ct. Briefs LEXIS 661, 129 S. Ct. 2378 (Aug. 3, 2009) (No. 08-861).

Hamilton, The Federalist Papers, Fed. No. 77, removal

Abstract:
It is not unusual for practitioners reviewing a Delaware corporation's stock records to find omissions or procedural defects raising questions as to the valid authorization of some of the outstanding stock. Examples of such omissions and defects are limitless, but not infrequently found examples include the absence of board resolutions authorizing the issuance of stock shown by the transfer books as having been issued, the absence of evidence that issuances were properly authorized by the requisite votes of the board or, if required, by the stockholders, the absence of evidence that the consideration to have been received by the corporation in exchange for the stock was in fact received, the issuance of more shares than were authorized by the certificate of incorporation at the time, the issuance of stock prior to the filing of the charter amendment or certificate of designations authorizing or creating the stock, and similar procedural and substantive irregularities. Not infrequently, these defects occurred some time ago, and the stock in question may have changed hands multiple times since issuance.

Confronted with such irregularities, most corporate lawyers' first instinct would be to attempt to correct the defect through board and, if necessary, stockholder, ratification of the defective issuance, with the intent of putting the parties in the positions they thought they were in prior to discovering the irregularity. However, Delaware courts have not always viewed defects in stock issuances as being curable by ratification. In a number of leading cases, the Delaware Supreme Court has treated the statutory formalities for the issuance of stock as substantive prerequisites to the validity of the stock being issued, and has determined that failure to comply with such formalities renders the stock in question void. A finding that stock is void means that defects in it cannot be cured, whether by ratification or otherwise. Thus, practitioners finding defects in stock issuances are put in the uncomfortable position of having to make a judgment whether the defect is one that renders the stock void, in which case ratification is not an option, or voidable, in which case ratification is an option. Unfortunately, the decisions issued by the Delaware courts have not afforded certainty in this critical area. Indeed, a recent decision of the Court of Chancery acknowledges that although "Delaware law is replete with cases" discussing the void-voidable distinction, the law as to when and whether a defective stock issuance can be cured "is not as clear as it could be."

This article analyzes the reasons for this lack of clarity, and proposes some solutions which would benefit buyers and sellers of corporate stock. We begin by examining the legal requirements applicable to stock issuances. Next, we discuss the foundation of the doctrinal distinction between void and voidable stock. We then discuss the cases where courts have found stock to have not been issued in accordance with these legal requirements, and whether such finding has resulted in the stock being found void or voidable. We also consider the purposes, principles and policies of certain provisions of Article 8 of the Uniform Commercial Code, designed to validate, in most circumstances, certain defects in stock in the hands of innocent purchasers for value. Interestingly, these provisions of the UCC have not been frequently discussed in the court cases that have considered whether stock is void or voidable, and the cases that have discussed them refer to them as setting forth an equitable rather than a legal principle - which is ultimately not helpful to corporate lawyers who opine on legal, not equitable, matters.

In conclusion, we suggest that the policy underlying Article 8 of the Uniform Commercial Code to validate stock in the hands of innocent purchasers for value, notwithstanding technical defects in its issuance, should be recognized as a principle of law, not solely as a principle of equity, and should be applied by the Delaware courts as such. As a result, technical defects relating to statutory formalities should not lead to a finding of void stock, but at worst to voidable stock. Cure or ratification should be permitted except in cases where the issuance violates the directors' duty of loyalty or otherwise would be inequitable. Such a rule would allow practitioners to opine as to the validity of a corporation's outstanding stock where the stock was issued defectively but the defect cured, subject to a standard exception for fiduciary duties and other equitable matters, and would eliminate the risk that stock held in the trading markets or otherwise held by innocent purchasers for value might be deemed void.

void, voidable, Triplex, Waggoner, Kalageorgi, Kamkin, Adlerstein, Superwire.com, MBKS, Reddy

Abstract:
U.S. Constitution: art. I, S. 7, cl. 3 reads:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Madison, in his Notes on the Debates in the Federal Convention (Aug. 15 & 16, 1787), said it meant the following:

Every [bill by whatever name Congress calls it] to which the Concurrence of the Senate and House of Representatives may be necessary [because it has legislative effect] (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of [other] Bill[s] [properly stylized when enacted per Art. I, S. 7, cl. 2].

Thus, this clause is usually called the residual presentment clause - or, the second presentment clause: it ensures presentment in spite of feared Madisonian legislative legerdemain attempting to manipulatively bypass the president's veto.

Here is the alternative view put forward by a Commonwealth parliamentarian with whom I corresponded on this question. He is very well informed with regard to 18th century British and colonial parliamentary and administrative (treasury) practices. Indeed, my research relied extensively on contacts with foreign parliamentary officers and counsel, legislative clerks & secretaries.

Every [final] Order, Resolution, or Vote [of a single house of Congress] to which the Concurrence of the Senate and House of Representatives may be necessary [as prior statutory authorization] (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect [as a regulation per the prior organic act], shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill [which is a different case].

Reexamination of colonial and early state records leads me to conclude that the new view better captures the original understanding of the ORV Clause - Madison's report notwithstanding. This new meaning stands our separation of powers jurisprudence on its head. It means the Supreme Court's holding in INS v. Chadha - broadly speaking - was fundamentally misconceived. Presentment is necessary, but not bicameralism, where single house orders are first authorized by a prior statute. At a deeper level it means that our interpretive community - judges, legal academics, academics in related fields (government, political science, and history), and lawyers generally - have forgotten what a clause of the Constitution meant, and that recovery of lost meaning required going to a foreigner!

Professor Gary S. Lawson has taken the position that although the new view captures the original meaning of the clause, coordinate constitutional provisions, particularly the vesting clauses of Articles I, II and III, restrict the domain of the clause to congressional subpoenas and contempts.

In this reply, I take the position that Congress's lawmaking powers under the ORV Clause are nearly coextensive with Congress's statutory lawmaking powers. Congress's powers under the ORV Clause extend far beyond congressional subpoenas and contempts.

My opening article appeared at: Tillman, A Textualist Defense, 83 TEXAS LAW REVIEW 1265-1372 (2005), also appearing at, http://ssrn.com/abstract=475204. Professor Gary S. Lawson's response appeared at: Lawson, Comment, Burning Down the House (and Senate), 83 TEXAS LAW REVIEW 1373 (2005), also appearing at, http://ssrn.com/abstract=556789. I replied at: Tillman, Reply, The Domain of Constitutional Delegations under the Orders, Resolutions, and Votes Clause, 83 TEXAS LAW REVIEW 1389-97 (2005), also appearing at, http://ssrn.com/abstract=658003.

Order, resolution, vote, ORV clause, Lawson, Tillman, parliament

Abstract:
Legal academics and the public are fascinated by both constitutional text and the processes by which it is interpreted. The precise role for legal academics in the interpretation of such charters is controverted. Doctrine and case law as established by the courts remain the core of academic legal discourse. Case law is, after all, the object about which doctrine is based, built, and extended. But the interpretation of constitutional text through case law comes with costs -- it seems to lack democratic legitimacy, and where unconnected to text and history, it has a tendency to fence out (even the well-educated) the public. On the other hand, when legal academics shift to text and history, their work gains populist credentials, but, at that point, the legal academic risks his privileged position. For the legal academic has no monopoly, or even highly developed expertise, with regard to textual exegesis or the best use of historical materials. In light of those attendant risks, I want to praise Professor Geoffrey R. Stone for taking on the role of exegete and historian. But that said, I find some of his specific textual and historical claims troubling. I respond to his textual and historical claims in detail below. This paper, however, has no grand normative claim of its own; it is merely an effort on my part to correct the record, and thereby to further the object pursued first by Professor Stone: "to know the truth about the Framers, about what they believed, and about what they aspired to when they created this nation."

What follows is substantive discussion of the Attestation Clause, the Oaths and Affirmations Clause, the Sundays Excepted Clause, the Religious Test Clause, and a critique of Stone's use of historical materials, particularly his claim in regard to a book burning at Harvard circa 1789.

Professor Stone's article, to which I respond, can be found at: Geoffrey R. Stone, The World of the Framers: A Christian Nation?, 56 UCLA L. Rev. 1-26 (2008). It is posted on the UCLA Law Review website.

My Response to Stone will appear in Penn State Law Review, and, in abridged form, it has already appeared in De Novo -- the on-line supplement to Cardozo Law Review. This is the unabridged version. De Novo plans to present my paper in conjunction with one or more replies.

Abstract:
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." Here, 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.

President, Senate, Senator, Incompatibility

Abstract:
This is a model continuity of Congress statute. States with constitutional provisions similar to U.S. Const. art. I, Section 7 could easily modify the act in light of their state constitutional and parliamentary nuances.


My opening article appears at: Tillman, Model, 4 PIERCE LAW REVIEW 191 (2006), also appearing at, http://ssrn.com/abstract=891560. Professor Sanford V. Levinson comments on my Model at: Levinson, Comment, Assuring Continuity of Government, 4 PIERCE LAW REVIEW 201 (2006), also appearing at, http://ssrn.com/abstract=900607. I reply to his comment at: Tillman, Reply, Overruling INS v. Chadha, 4 PIERCE LAW REVIEW 207 (2006), also appearing at, http://ssrn.com/abstract=900589.

congress, continuity, chadha

Abstract:
This article is published in conjunction with my MODEL CONTINUITY OF CONGRESS STATUTE. Professor Sanford V. Levinson in a comment, appearing with the MODEL, has voiced legal and prudential objections to my proposed statutory solution. This Reply responds to those objections.

My opening article appears at: Tillman, Model, 4 PIERCE LAW REVIEW 191 (2006), also appearing at, http://ssrn.com/abstract=891560. Professor Sanford V. Levinson comments on my Model at: Levinson, Comment, Assuring Continuity of Government, 4 PIERCE LAW REVIEW 201 (2006), also appearing at, http://ssrn.com/abstract=900607. I reply to his comment at: Tillman, Reply, Overruling INS v. Chadha, 4 PIERCE LAW REVIEW 207 (2006), also appearing at, http://ssrn.com/abstract=900589.

continuity, congress, textualist, Chadha

Abstract:
Tara Ross has taken on a herculean task: an exposition of and a defense of the electoral college, in conjunction with a defense of prevailing state statutory and customary presidential election processes, including: first-past-the-post, winner-take-all with regard to appointing electors.

It is a valiant, romantic, Don Quixote like effort. But in the end: the windmill still wins. It always does. Her explanation of prevailing practices falls short of the mark. And this I suggest might be a sign that the system is too complex and unwieldy. Ross also defends the electoral college for consistently producing the right winner, notwithstanding 1876 and 2000 where the electoral college winner (under the final tally) had fewer popular votes. But this defense, so common among defenders of the electoral college, fails to recognize that many states historically were rotten boroughs where those with the de jure and de facto vote controlled the whole state's slate of electors. So the if-it-ain't-really-really-broke-let's-not-fix-it-Burkean position is not so clear. Lastly, Ross's defense of the electoral college, rooted in federalism and states' rights concerns seems, to this reviewer at any rate, somewhat untethered from the actual details of the electoral college she seeks to defend.

democracy, republic, the Federalist Papers, electoral college

Abstract:
The text of the Constitution nowhere expressly demands contemporaneous action (i.e., during the life of a single two year session) by the two houses of Congress as a precondition for valid lawmaking. No on-point federal decision mandates contemporaneity - nor do the precedents of the two Houses (i.e., the reported decisions of the Speaker, the Clerk, the Secretary, the parliamentarians, etc.). Is this a power Congress has chosen never to exercise? Or, a power that Congress does not possess? Can we be sure that the federal courts would intervene to block such a practice, particularly if the bill were signed by a Speaker and a Vice-President - albeit, perhaps not in office concurrently?

This paper makes heavy use of foreign authority, including, Australian, British, Canadian, Indian, and New Zealand sources. Additionally, this paper criticizes prior domestic scholarship in this area.

This piece is presented in a comic voice: a memorandum offering confidential legal advice to Speaker Hastert from an embittered politically spiteful Republican House counsel.

My opening article will appear at: Tillman, Noncontemporaneous Lawmaking, 16 Cornell J. of Law & Public Policy 331 (2007), available at http://ssrn.com/abstract=505822.
Professor Aaron-Andrew P. Bruhl response to my opening article will appear at: Bruhl, Response, Against Mix-and-Match Lawmaking, 16 Cornell J. of Law & Public Policy 349 (2007), available at http://ssrn.com/abstract=932574.
My Reply to his response will appear at: Tillman, Reply, Defending the (Not So) Indefensible, 16 Cornell J. of Law & Public Policy 363 (2007), available at http://ssrn.com/abstract=956155.

Article I, Section 7, lawmaking, contemporaneity, field v clark

Abstract:
I argue that as a simple straight forward textual matter the Senate majority can terminate a presidential recess appointment by terminating their session, i.e., the session that meets following a presidential intersession recess appointment. If the president makes an intrasession recess appointment (assuming such things have any constitutional validity at all), the Senate can terminate that appointment too - by terminating the current session, immediately reassembling, and then terminating the new session!

I do not argue that American history or the Constitution's structure support this position, nor do I feel inclined to do so, where as here, the text is reasonably clear. I do, however, marshal some policy arguments to support the textual argument, although I frankly acknowledge that these arguments should not control the meaning of a constitutional clause.

My opening article appears at: Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82, also appearing at, http://ssrn.com/abstract=956164. Professor Brian C. Kalt has drafted an interesting and thoughtful response to my proposed procedural innovation. His response appears at: Kalt, Keeping Recess Appointments in Their Place, 101 Nw. U. L. Rev. Colloquy 88, also appearing at, http://ssrn.com/abstract=959051. My Reply to his response appears at: Tillman, Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt, 101 Nw. U. L. Rev. Colloquy 94, also appearing at, http://ssrn.com/abstract=962100. And finally, Professor Brian C. Kalt has posted: Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman, 101 Nw. U. L. Rev. Colloquy 108, also available at, http://ssrn.com/abstract=962762.

This 4-part exchange was originally published over January-February 2007. The exchange was republished on Colloquy on January 2009.

See 103 NW. U. L. REV. COLLOQUY 286 (2009);
103 NW. U. L. REV. COLLOQUY 292 (2009);
103 NW. U. L. REV. COLLOQUY 298 (2009);
103 NW. U. L. REV. COLLOQUY 305 (2009).

President, Congress, House, Senate, recess, adjourn, adjournment, appoint, appointment

Abstract:
A trilogy of highly influential and frequently cited articles published by Professors Akhil Reed Amar, Vikram David Amar, John F. Manning, and Steven G. Calabresi in the Stanford Law Review in 1995 generally took the position, with varying degrees of confidence, that as a matter of original public meaning, the Constitution precludes legislative officers from succeeding to the presidency under the Succession Clause. The Succession Clause provides:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

In other words, the Succession Clause permits Congress to enact a statute (or statutory framework) controlling succession in the event of a double vacancy, i.e., when both the President and Vice President's offices go vacant. But the Succession Clause limits congressional discretion. Only an officer may succeed to the presidency under the aegis of this clause. The Amars ask whether the Speaker of the House and the Senate President pro tempore are officers within the meaning of the Succession Clause. And they answer the question in the negative. Looking to constitutional text, structure, and history, they argue that legislative officer succession is not permitted under rubric of the Succession Clause.

Although the Stanford Trilogy (and the Stanford Trilogists too) are now some thirteen years older, there are two very sound reasons to be interested in these dated articles. First, the underlying question is still of great import as Congress has chosen to put both the aforementioned legislative officers at the head of the line of succession. In other words, our current succession law calls for the presidency to devolve on persons who, at least according to prominent commentators, are flatly ineligible as a matter of constitutional law. There is a second reason to be interested in the Stanford Trilogy. The Stanford Trilogy is the very exemplar of modern originalism. It is widely cited. But it is more than that. It is warmly praised and widely admired.

Here, in this Article, I too intend to focus on text, structure, and history - but mostly on text. I do not defend Congress' statutory craftsmanship in toto, and I recognize that Congress' Succession Statute, 3 U.S.C. § 19, suffers from a variety of defects both from a normative or policy perspective and several possible constitutional infirmities. Nevertheless, in the remainder of this Article, I will take a position contra the authors of the Stanford Trilogy, and argue that legislative officer succession, standing alone, is not among the statute's constitutional defects.

I hope to post the next section of this article in 4 to 6 weeks. Comments on this section are welcomed. Opportunities to present a fuller version of this paper at a faculty colloquium would be welcomed. Offers to publish would also be very welcomed.

President, Congress, Succession, Cabinet, Senate President, Speaker

Abstract:
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." Here, I (further) 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. He states that my position is "utterly implausible." This paper is my reply to Professor Calabresi's response to my opening statement. The focus of our exchange relates to the Oaths and Affirmations Clause, the Impeachments Clause, and the Commissions Clause. Professor Calabresi will write a rejoinder ending our 4-part exchange.

President, Senate, Senator, incompatibility

Abstract:
Legal academics and the public are fascinated by both constitutional text and the processes by which it is interpreted. The precise role for legal academics in the interpretation of such charters is controverted. Doctrine and case law as established by the courts remain the core of academic legal discourse. Case law is, after all, the object about which doctrine is based, built, and extended. But the interpretation of constitutional text through case law comes with costs -- it seems to lack democratic legitimacy, and where unconnected to text and history, it has a tendency to fence out (even the well-educated) the public. On the other hand, when legal academics shift to text and history, their work gains populist credentials, but, at that point, the legal academic risks his privileged position. For the legal academic has no monopoly, or even highly developed expertise, with regard to textual exegesis or the best use of historical materials. In light of those attendant risks, I want to praise Professor Geoffrey R. Stone for taking on the role of exegete and historian. But that said, I find some of his specific textual and historical claims troubling. I respond to his textual and historical claims in detail below. This paper, however, has no grand normative claim of its own; it is merely an effort on my part to correct the record, and thereby to further the object pursued first by Professor Stone: “to know the truth about the Framers, about what they believed, and about what they aspired to when they created this nation.”

What follows is substantive discussion of the Attestation Clause, the Oaths and Affirmations Clause, the Sundays Excepted Clause, the Religious Test Clause, and a crtique of Stone's use of historical materials, particularly his claim in regard to a book burning at Harvard circa 1789.

Professor Stone's article, to which I respond, can be found at: Geoffrey R. Stone, The World of the Framers: A Christian Nation?, 56 UCLA L. Rev. 1 (2008). It is posted on the UCLA Law Review website.

My Response to Stone will appear in Penn State Law Review, and, in abridged form, it has already appeared in De Novo -- the on-line supplement to Cardozo Law Review. This is the abridged version. De Novo plans to present my paper in conjunction with one or more replies.

Abstract:
I argue that as a simple straight forward textual matter the Senate majority can terminate a presidential recess appointment by terminating their session, i.e., the session that meets following a presidential recess appointment.

My opening article appears at: Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82, also appearing at, http://ssrn.com/abstract=956164. Professor Brian C. Kalt has drafted an interesting and thoughtful response to my proposed procedural innovation. His response appears at: Kalt, Keeping Recess Appointments in Their Place, 101 Nw. U. L. Rev. Colloquy 88, also appearing at, http://ssrn.com/abstract=959051. My Reply to his response appears at: Tillman, Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt, 101 Nw. U. L. Rev. Colloquy 94, also appearing at, http://ssrn.com/abstract=962100. And finally, Professor Brian C. Kalt has posted: Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman, 101 Nw. U. L. Rev. Colloquy 108, also available at, http://ssrn.com/abstract=962762.

This 4-part exchange was originally published over January-February 2007. The exchange was republished on Colloquy on January 2009.

See 103 NW. U. L. REV. COLLOQUY 286 (2009);
103 NW. U. L. REV. COLLOQUY 292 (2009);
103 NW. U. L. REV. COLLOQUY 298 (2009);
103 NW. U. L. REV. COLLOQUY 305 (2009).

President, Congress, House, Senate, recess, adjourn, adjournment, appoint, appointment

Abstract:
This paper replies to Professor Bruhl's response, Against Mix-and-Match Lawmaking, to my opening article: Noncontemporaneous Lawmaking. The trilogy of articles discuss the constitutional validity (or invalidity) of noncontemporaneous lawmaking, i.e., the House and the Senate passing the same bill, but not within a given two-year House term, followed by subsequent presentment to the President (some unspecified time thereafter). Professor Bruhl's erudite essay required that I clarify and fine tune my prior position. I respond to his arguments with textual, historical, and quasi-structural arguments.

This paper, like the opening article, makes heavy use of foreign authority, particularly Irish and Australian authority.

See Tillman, Noncontemporaneous Lawmaking, 16 Cornell J. of Law & Public Policy 331 (2007), available at http://ssrn.com/abstract=505822;
Professor Aaron-Andrew P. Bruhl, Response, Against Mix-and-Match Lawmaking, 16 Cornell J. of Law & Public Policy 349 (2007), available at http://ssrn.com/abstract=932574;
Tillman, Reply, Defending the (Not So) Indefensible, 16 Cornell J. of Law & Public Policy 363 (2007), available at http://ssrn.com/abstract=956155.

Congress, statutes, lawmaking, contemporaneity, noncontemporaneity

Abstract:
This paper discusses 2006-2007 Delaware developments in mergers and acquisitions law. This paper is available on Westlaw.

corporation, corporate, mergers, acquisitions, Delaware

Abstract:
This paper offers some tentative predictions with regard to the contours of future litigation under the Delaware General Corporation Law. Feel free to contact me (Seth Barrett Tillman) for a copy of this article.

Delaware, corporation

Abstract:
This short paper has some comments on the Constitution's use of the verbs shall and may (and will). I suggest the dominant view needs to be reexamined.

shall, may, will, Constitution, Anglo-English, American-English, Madison

Abstract:
This paper is not yet drafted. It is just in the idea stage. I hope to post a draft over 2009 and 2010. (August 4, 2009)