Why the Incompatibility Clause Applies to the Office of the President

9 Pages Posted: 23 Feb 2010

See all articles by Saikrishna Prakash

Saikrishna Prakash

University of Virginia School of Law

Date Written: 2009


In Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution's Incompatibility Clause, Seth Barrett Tillman argues that a sitting President may serve simultaneously as a member of Congress. The Incompatibility Clause speaks to this very matter. It specifies that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." Mr. Tillman asserts that the President is neither an officer nor holds an office "under the United States."

Though he cites many different law review articles and constitutional provisions, Mr. Tillman has done little to dislodge conventional wisdom. The President occupies an "Office under the United States" as his Oath Suggest and as Many members of the founding generation understood.

Keywords: Incompatibility, Office, Officer, "Under the United States," Tillman, Washington, Bastille, Office of Trust or Profit, Senate, House, Congress, President

Suggested Citation

Prakash, Saikrishna, Why the Incompatibility Clause Applies to the Office of the President (2009). Duke Journal of Constitutional Law & Public Policy, Vol. 4, pp. 35-43, 2009, Virginia Public Law and Legal Theory Research Paper, Available at SSRN: https://ssrn.com/abstract=1557164

Saikrishna Prakash (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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