26 Pages Posted: 1 Nov 2008 Last revised: 18 Aug 2010
Date Written: December 1, 2008
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.
In addition to Professor Calabresi's response, which was part of the debate on PENNumbra, I had a similar exchange with Professor Prakash. See Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution's Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol'y 107 (2009); 4 Duke J. Const. L. & Pub. Pol'y Sidebar 1 (2008); Saikrishna Bangalore Prakash, Response, Why the Incompatibility Clause Applies to the Office of President, 4 Duke J. Const. L. & Pub. Pol'y 143 (2009); 4 Duke J. Const. L. & Pub. Pol'y Sidebar 35 (2008).
Keywords: President, Senate, Senator, Incompatibility
Suggested Citation: Suggested Citation
Tillman, Seth Barrett, Opening Statement: Why President-Elect Obama May Keep His Senate Seat After Assuming the Presidency (December 1, 2008). University of Pennsylvania Law Review PENNumbra, Vol. 157, pp. 134, 135-140, 2008. Available at SSRN: https://ssrn.com/abstract=1292359