Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications

Abstract

Constitutions, statutes, and regulations create public offices, and frequently such legal instruments also create qualifications for those offices. When positive law creates qualifications for elected positions, these restrictions limit the scope of democratic choice. Nevertheless, such restrictions on democratic choice have a long pedigree in a variety of jurisdictions. Adjudications relating to qualifications to public office are not uncommon. Likewise, in the United States, the Constitution sets out qualifications for elected federal officials: i.e., Representatives, Senators, President and Vice President. Such qualifications include, among others, provisions relating to age, citizenship, and residence. Courts and commentators have long debated whether the qualifications in the Constitution’s text are exclusive (i.e., floors and ceilings) or whether they are merely floors, which can be supplemented by additional qualifications imposed by Congress and/or by the States.

Once again, this issue has become topical. Hillary Clinton, a former Secretary of State and former Senator, is a prominent candidate in the upcoming Democratic Party primary elections. These primaries select delegates to a national convention which will choose the Democratic Party’s candidate for the November 2016 popular presidential election. It has been alleged that, during her term of service as Secretary of State, Clinton violated a provision of the federal statute mandating government record keeping. Section 2071 of Title 18 of the United States Code provides:

"Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States." Section 2071’s language poses two interesting interpretive challenges.

First, what is the scope of the statute? In other words, does Section 2071’s generally worded "office under the United States" language extend to the presidency?

Second, if Section 2071’s general "office under the United States" language fairly encompasses the presidency, is the statute constitutional? In other words, does Congress have the power to create additional qualifications for the presidency beyond those already expressly stated in the Constitution’s text?