“Seth
Barrett Tillman has made an ingenious argument for an utterly implausible
proposition. He claims that Presidents of the United States can serve
simultaneously in Congress as senators or representatives.”
Steven
G. Calabresi, Rebuttal, Does the Incompatibility Clause Apply to the
President?, in 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, 141-45
(2008).
“To occupy an office under the United States is to
occupy an office created under the authority of the United States. Because the President
occupies an office created under the authority of the United States, he
occupies an ‘Office under the United States.’ The Constitution uses the phrase
‘Office under the United States’ or its equivalents multiple times to
distinguish federal officers from officers under the authority of a state, not
to distinguish, in a highly obscure manner, the President from other officers.”
“Tillman further
declares that Presidents have never commissioned either themselves or their
corresponding Vice-Presidents. Unfortunately, he offers no evidence to support
any of these propositions, but merely asserts them as fact. He neither cites
any of Washington’s contemporaries nor cites any historians who claim that
Washington never commissioned himself. That no physical evidence of such a
commission exists, however, certainly does not prove that the President never
issued one.”
Saikrishna Bangalore Prakash, Response, Why the Incompatibility Clause Applies to the Office of President, 4 Duke J. Const. L. & Pub. Pol’y 143
(2009) (footnotes omitted).
“Professor
Seth Tillman argues that the Incompatibility Clause itself does not apply to
the president, only to officers serving under the president.... But we do not
agree with Tillman ....”
Michael C. Dorf
& Lisa T. McElroy, Coming Off The Bench: Legal and Policy Implications
of Proposals to Allow Retired Justices to sit by Designation on the Supreme
Court, 61 Duke L.J. 118 n.151
(2011).
“Seth Tillman has made a good case that officers ‘under the authority of the United States’ in the Emoluments Clause are not the same set as officers ‘under’ or ‘of’ the United States, and that people should be careful about treating these different phrasings as though they are necessarily identical.”
Brian
C. Kalt, Constitutional Cliffhangers: A Legal Guide for Presidents and Their
Enemies 212 n.16 (2012)
“Tillman
has persuaded me that, standing alone, the text and early history of the
Constitution are probably best read to permit a single person simultaneously to
serve in Congress and as either President or Vice-President.”
“It does not strike me ... that
[President Washington] would have lightly interpreted the Foreign Emoluments
Clause in the manner Tillman suggests.”
“[T]he President cannot recess appoint [the Vice President]
and the President does not commission [the Vice President].”
Roy
E. Brownell II, The Independence of the
Vice Presidency, 17
NYU J. Leg. & Pub. Pol’y 297,
308 n.40 (2014) (footnote omitted).
“Tillman’s primary criticism of Teachout is that she reads ‘Person
holding any Office of Profit or Trust’ in the Foreign Emoluments Clause to
include elected representatives. Tillman does not.... Tillman’s carefully
argued point ....”
Lawrence
Lessig, The 2013 Jorde Lecture, What an
Originalist Would Understand ‘Corruption’ to Mean, 102 Calif. L. Rev. 1, 5 n.12 (2014).
“This
prohibition [in the Incompatibility Clause] may not extend to the President.”
Derek T. Muller,
Scrutinizing Federal Electoral Qualifications,
90 Ind. L.J. 559, 564 n.21 (2015).
“As
Seth Tillman has argued at length, the Emoluments Clause does not cover members
of Congress, and perhaps not even the President and Vice President.”
John
O. McGinnis, Neutral Principles and Some
Campaign Finance Problems, 57 Wm. & Mary L. Rev. 841, 905 n.336 (2016).
“Interestingly,
vice presidents may not be constitutionally required to take an oath, since
their office isn’t mentioned in either the Article II Presidential Oath Clause
or the Article VI Oath Clause.”
Richard Re, Promising the Constitution, 110 Nw. U. L. Rev. 299, 338 n.155 (2016).
“Professor Tillman’s theory makes sense of
patterns that most of us never saw. It brings order out of chaos. That is not
to say that his position has been conclusively proven. But at this point, I
think he has singlehandedly shifted the burden of proof.”
William Baude, Constitutional Officers: A Very Close Reading, Jotwell (July 28, 2016) (peer reviewed).
Seth
Twitter: https://twitter.com/SethBTillman ( @SethBTillman )
My prior post: Seth Barrett
Tillman, Letter to the Editor, Responding
to Robert Fisk’s “To understand the Islamist beheading of a French priest ....”,
The New
Reform Club (July 31, 2016, 6:20 AM)
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