Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause
Duke Journal of Constitutional Law & Public Policy Sidebar, Vol. 4, pp. 1-34, 2008
34 Pages Posted: 20 Aug 2010 Last revised: 24 Aug 2010
Date Written: November 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 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 first appeared in the Duke Journal of Constitutional Law and Public Policy Sidebar in 2008. It also appeared in the Duke Journal of Constitutional Law and Public Policy in 2009.
Professor Saikrishna Bangalore Prakash's Response, titled Why the Incompatibility Clause Applies to the Office of President, appeared in 4 Duke J. Const. L. & Pub. Pol'y 143 (2009); 4 Duke J. Const. L. & Pub. Pol'y Sidebar 35 (2008). Likewise, I had a similar exchange with Professor Calabresi. See Seth Barrett Tillman & Steven G. Calabresi, Debate, 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).
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