Thursday, August 23, 2012

Coda on Dual Service in Congress and as VP: Seth Barrett Tillman Replies


Note from Mike Dorf:  In response to the doubts I raised about his argument concerning the constitutionality of Rep. Ryan (or anyone else) simultaneously serving in the House and as VP, Seth Barrett Tillman has written the following reply.  In addition to addressing that concrete question, it nicely frames some important questions in constitutional interpretation.  Now here's Seth.

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Professor Dorf and I agree on (at least) one thing. The position – that the President and Vice President are not Offices under the United States (as that expression is used in the Incompatibility Clause) – is not compelled by the text of the Constitution. The text-reliant position is strengthened by various post-1789 documents and incidents, including, among others:

(i) President Washington’s conduct in regard to accepting both the key to the Bastille from LaFayette (1790) and the Louis XVI portrait from the French Ambassador (1791);
(ii) Secretary Hamilton’s responsive correspondence to the United States Senate (1793);
(iii) Justice Chase’s letter to Chief Justice Marshall (1802);
(iv) Justice Story’s Commentaries (1833) and McKnight’s treatise on election law (1878);
(v) The absence of a continuous tradition of President’s issuing commissions to their successors in office and to Vice Presidents (1789-present); and,
(vi) Justice Miller’s opinion for the Supreme Court in United States v. Mouat (1888); etc.

The post-1789 historical case improves the textual position. Admittedly, it does not quite reach, what the British tabloids call, the stand-up-in-court-proof-of-adultery-in-the-royal-bedroom-through-photographic-evidence standard.

Because the pure text-reliant position is (arguably) insufficient, we turn to history. Historical material buttresses the text-reliant position, but it still leaves Professor Dorf (and many, many others) with fairly-held residual doubts. What then? The interpreter at that point turns to other modalities or strategies of interpretation. The modern approach is to turn to what is called constitutional structure (at least where the text is less than what is reasonably clear).

Professor Dorf writes: “there is, in my view, enough wiggle room for the text to support what may turn out to be an ahistorical view.” My problem with Michael’s position is not that he is wrong; he is not wrong. But, that his statement lacks his customary precision. His interpretive strategy – embracing structuralism absent clear text – is open to (at least) several different interpretations (independent of what he personally intended). In other words, I am responding to his prior post’s original public meaning, not his (secretly held or otherwise ambiguous) original intent.

(I) Structuralism As A Solution to Bona Fidé Ambiguity. Here the interpreter acknowledges that the key text – Office under the United States in the Incompatibility Clause – is controlling. The interpreter’s problem is that the text was ambiguous in 1789. Ambiguity here may mean either: (A) it was subject to multiple fairly held understandings in 1789; or (B) no one really thought about it in 1789, but if they had, it would have been subject to multiple fairly held understandings. Structure allows the interpreter to settle on one of those fairly held meanings by importing into the Incompatibility Clause normative principles arising in connection with related constitutional provisions. These other provisions are helpful because they (unlike the Incompatibility Clause) speak with clarity.

Michael cannot rely on this strategy in regard to the operative language here. Why? The primary reason is that ambiguity is not something that one can merely assert. It is an empirical claim which itself requires some evidence. He has not put any evidence forward that in 1789 the meaning of Office under the United States (as used in the Incompatibility Clause) was in doubt.

There is also some good reason to believe that the Framers and the People thought about this issue and this language a great deal and that a common specific meaning was widely held. Decisions taken in regard to congressional incompatibility are taken by a single house acting alone, absent presentment, absent bicameralism, and (in most cases) absent meaningful or timely judicial review. Such legislative determinations do not require supermajorities, just simple majorities: a majority of those voting, a quorum present. If the Framers had chosen ambiguous language that would have let the majority oppress and exclude the minority. In such circumstances, it stands to reason that the anti-federalists would have objected. And I might add, rightly so. But where is there a record of any such objection or anything like it?

The second reason is more cheeky. Michael throws pure textualism overboard because

To be sure, Tillman's textual argument is a good one. He uses a technique that Akhil Amar has called “intra-textualism” to glean the meaning of a term—“Office”--from how it and other terms are used in other parts of the document. If we had only the text of the Constitution, I think I would be persuaded by his reading. But the Constitution is not the perfect word of God.

What is good for the (constitutional) goose is good for the (constitutional) gander. If we cannot make use of intratextual meaning because the Constitution is not the word of “God,” if we cannot discover the meaning of the Incompatibility Clause’s Office under the United States language by investigating how the same (or similar) text was used elsewhere in the Constitution, then there is no reasonable warrant to look to the purposes of other clauses either. If usage was not consistent and coherent across the Constitution, then we lack any basis to assume strong aspirational or normative consistency across provisions either. So this strategy will not do.

(II) Stucturalism In The Service Of Other Constitutional Text. Here, Michael’s argument may be ... OK, the Incompatibility Clause does not forbid joint dual Member/VP office-holding, but such dual office-holding undermines the purpose of other constitutional provisions. Consider this hypothetical. A contested popular general election is held and no one wins an Electoral College majority. Under Amendment XII, the choice of the President falls to the House; the Vice President, the Senate. What if the two bodies were to pick the same person. (Remember Lloyd Bentsen – in 1988, he received electoral votes for both slots!) Could the same person hold both positions at the same time? The Incompatibility Clause does not preclude it. No other provision expressly forbids it. So you might say – well, yes, the same person could hold both the presidency and vice presidency. But, you might also reasonably argue that the entire or, at least, the primary purpose of the VP is to step into the shoes of the President in the event of the latter’s death, resignation, incapacity, conviction in impeachment proceedings, etc. So if the same person holds both positions, then the whole (or nearly the whole) purpose of the Constitution’s succession-related provisions has been frustrated and that is sufficient warrant to forbid what the text does not otherwise expressly forbid.

Michael cannot rely on this strategy here. Consider the Constitution’s many clauses relating to presentment and bicameralism. Was there widespread agreement in 1789 what these clause’s purposes were? Is there today? I do not think so. This popular, academic, and judicial literature here is quite contentious. (Some caused by me!) But even assuming this problem away, Ryan’s holding one seat in the House and the presiding chair in the Senate hardly undermines the whole or, even, nearly the whole purpose of these provisions. I think Michael has (at least elliptically) already acknowledged that: “[I]f [dual office-holding were permitted by a court] . . . I don’t think that would necessarily be so bad.”

So this strategy will not do either.

(III) Structuralism In The Service Of Constitutional Aspirations Or (Founding-era or Modern) Norms. Unlike strategies (I) and (II) above, this strategy is not driven by any express text. It relies on unstated assumptions or aspirations connected to the Framers’ worldview, the ideal of written constitutionalism, or our system’s federal design, etc. My own view is that this strategy is inconsistent with the rule of law, but I am (unfortunately) in the minority on this.

I will further state that this strategy – more than any other strategy – more than textualism – fairly applied – should lead the interpreter to permit dual member-VP office-holding.

Why? For the very sensible reasons explained by the Supreme Court of the United States in Powell v. McCormack (1969). In Powell, the Court held that the House’s refusal to seat Congressman-elect Powell, his exclusion based on a finding of corruption, was unconstitutional. In other words, the House can only exclude a member based on qualifications expressly stated in the Constitution: e.g., age, residency, and citizenship. Allegations of corruption, even if proven, will not do. The Court’s holding was rooted in two deep structural concerns. First, ours is a written constitution. A commitment to written constitutionalism requires the Courts, Congress, and other political actors (and, as an aspirational matter, maybe even legal academics speaking in the name of the Constitution?) to respect the Constitution’s textual limits. Congress is not free to subtract from extant express limitations, nor is it free to fashion new ones beyond the express text.

More importantly, restrictions on office-holding impinge on the freedom of the People to choose their governors: a theme which runs continuously from 1776 to 1787, and then to 1861-1865, and into the present of today and, hopefully, into our tomorrows. The People’s freedom to choose their own governors should not be limited by abstract policy-making concerns, common law decision-making, viz. structuralism.

Structuralism may have a role in other areas of constitutional law, but not here, not in regard to dual office-holding. At least, it ought not to; too much is put at risk by it. I suppose that makes me a bit of a moralist. I have tried not to be. And, as I said at the outset, I do not support text-free structuralism as a legitimate modality of interpretation (even where, as here, it supports the thrust of my position).

Professor Dorf and I agree that a further discussion of Wisconsin law as it relates to dual office-holding is too tangential for this blog. If you are still interested in the Wisconsin law aspect . . . see Michael Stern’s Point of Order blog (August 14, 2012), and CONLAWPROF (August 12 – August 17, 2012). This has been a fun party. Two blog posts are “far too short a time to spend among you – [but] this is the END. I am going. I am leaving NOW. Good-Bye!

Seth

23 comments:

Marty Lederman said...

Seth's argument appears to be that the phrase "office under the U.S." had a particular public meaning in 1787, and we are therefore bound by it now. Let's assume, for purposes of this discussion, that we all agree (although of course we do not) that unambiguous original public meaning is determinative of proper constitutional interpretation today.

To which Mike responds: OK, you've provided some evidence that some very important people at the time acted in a way that indicates that they assumed the POTUS and VP were offices, but not offices "under the United States." But at the very least the language of the phrase bears the *natural* reading, too, and so we have the requisite ambiguity to go beyond original public meaning.

Seth's response to this is to (i) put the onus on Mike to demonstrate the ambiguity; and (ii) to claim that Mike has not satisfied his burden since he "has not put any evidence forward that in 1789 the meaning of Office under the United States (as used in the Incompatibility Clause) was in doubt."

To begin with, why isn't the onus on you, as the proponent of the original public meaning claim, to show that there was no ambiguity, particularly where, as here, the interpretation you embrace is deeply contrary to the natural way in which virtually everyone (including both political branches) has understood those words today and throughout most of our history?

More importantly, regardless of who has the "burden" in this academic exercise, isn't the ambiguity fairly established by the fact that there's no obvious explanation in longstanding ordinary language usage why those two offices are *not* "under the United States"? I can't improve on what Doug Laycock wrote to you on this point a couple of weeks ago:

"To say that the presidency is an office, but not an office of or under the United States, [is] linguistically strange to the point of being bizarre. That ... does not rule out the possibility of some lost linguistic convention or term of art that would make such a distinction. But this term of art would not be a specialized or narrowed variation or derivative from ordinary English usage; it would wholly at odds with ordinary English usage. Given that the presidency is an office, what is its relationship to the United States? It is not an office of or under France, or an office of or under Virginia, or an office of or under a brooding omnipresence in the sky. It is not an office unrelated to, or outside of, the United States. Neither is it an office over the United States — the President is an agent of the people and subject to the Constitution and to the people’s ultimate authority like any other officer of the government. If it is an office, and that much is clear, then in ordinary English it is an office of or under the United States. If the Framers thought differently, they did not express it in any way that readers can comprehend."

Now, you may think, Seth, that the "ordinary English usage" point is not as clear cut as Doug suggests -- principally because it does not appear to have been assumed by the early actors you identify. Fair enough.

But surely Doug's "ordinary English usage" point is sufficient to establish *ambiguity* at a minimum, at least absent any explanation of an alternative meaning of the use of the word "under" in 1787 (and probably even then, since presumably the ordinary meanings of "under" on which Doug relies were indeed widely understood in 1787, too).

Marty Lederman said...

Sorry, here's a simpler way of getting at the same point:

If all one had to go on was the text, I think virtually everyone today would say, as Doug did, that there was no ambiguity at all -- the President is obviously covered by the Clause, and Seth's alternative reading would be excluded if one were committed to original public meaning as a methodology. For example, in 2009 we at OLC concluded without pausing at all that the President "surely" holds an Office of Profit or Trust under the U.S. See www.justice.gov/olc/2009/emoluments-nobel-peace.pdf.

The framing-era conduct of officials and writers that Seth has uncovered *at most* has the effect of introducing ambiguity about original public meaning where none would otherwise have existed. (I'm not certain whether proponents of the Whittington/Solum/Barnett theory would actually accept such conduct as a means of creating ambiguity -- they might insist upon actual *direct* evidence that the phrase "under the U.S." was understood to mean "appointed (but not elected) to a position in the federal government.")

But the idea that the phrase "office under the United States" *unambigously* did not cover the presidency in 1787 is, to say the least, deeply counterintuitive, in light of the ordinary meaning (then and now) of those words.

Hashim said...

Marty,

How does your "ordinary" text argument deal w/ the Commissions Clause of Art. II, Sec. 3? As Seth pointed out, the President "shall commission all the officers of the United States." Yet no one would ordinarily or reasonably construe that text to require the President to commission himself (or his successor) or the VP (or his VP's successor) -- and an unbroken history of non-commissions for these offices confirms that point.

Accordingly, there seems to be unambiguous textual (and historical) evidence that the President and Vice President are not "officers of the United States." And there doesn't seem to be any reasonable textual warrant for interpreting "officers of the United States" more narrowly than "office under the U.S." -- indeed, if anything, the latter is arguably more narrow and consistent w/ Seth's interpretation, because "under" is more likely than "of" to connote *statutory* offices.

Best,
Hash

Joe said...

"To say that the presidency is an office, but not an office of or under the United States"

The incompatible class are those "holding any Office under the U.S.," not any "office of" the U.S., full stop. The "under" might imply some inferior position, "under" the control of another, which members of Congress and the President, VP are not.

I don't think the framers really thought of the idea the VP would serve in Congress. The VP was going to be the second place winner of the election. He was going to preside over the Senate. It wouldn't make sense for him to be a member of the Senate (the whole point was an independent person to preside) or the House (violating the point of having two separate branches of Congress).

But, being an officer under the U.S. is more conceivable, especially since members of Congress were in session not too often. It would possible to think w/o the prohibition that a member of Congress could also serve as a postmaster or some more minor federal post w/o being a blatant violation of checks and balances.

The President and VP do (Art II) hold "office," so the use the "public trust" category in Art. VI is dubious. The "any office" there would include those "of" or "under" or merely holding "a" office.

The above suggests that the Constitution's text leaves the question of VP service in Congress somewhat open but Prof. Dorf's arguments still work off that.

Seth Barrett Tillman said...

Marty,

I appreciate very much your input here.

Your comment here is now the second time that you have brought up the 2009 OLC memorandum. (You brought it up a week ago on CONLAWPROF.) This is the memorandum signed by then-Acting Assistant Attorney General David J. Barron; he is now a professor at Harvard Law School.

I harbour some doubts about that memorandum, but you seem to think it is good authority. So, let’s talk about that. That memorandum engages in an original public meaning analysis of the Foreign Emoluments Clause. That is not my characterization: it is yours.

You wrote:

“[T]he President is obviously covered by the Clause, and Seth’s alternative reading would be excluded if one were committed to original public meaning as a methodology. For example, in 2009 we at OLC concluded without pausing at all that the President “surely” holds an Office of Profit or Trust under the U.S.”

But, a large part of that analysis was based on the historical record. The memorandum traced Executive Branch conduct from the present (2009 – when the memorandum was drafted) back through the 20th century and then back into the 19th century. It seems to stop with President Benjamin Harrison. With regard to the question of the applicability of the Foreign Emoluments Clause to the President, the memorandum puts forward no antebellum authority. And it does not examine the Washington-era foreign gifts. Why is that? They are not difficult to find. Just look at GW’s letters. Perhaps, if Professor Barron had been aware of the contrary historical precedents, he would not have been so “sure”? Professor Akhil Amar has written that the President is covered by the Foreign Emoluments Clause. But, I see no indication that he is aware of the Washington-era gifts. Perhaps, if we tell them – Professor Amar and Professor Barron – they might reconsider. It is possible, isn’t it? People change their mind from time to time when confronted with contrary evidence . . . at least some do, some of the time.

My second problem with the 2009 OLC memorandum is that it breaks with prior OLC precedent. Prior OLC memoranda – by Shanks, McGinnis (now Professor McGinnis at Northwestern), and Cooper – indicated that “Office . . . under the United States,” as used in the Foreign Emoluments Clause, was/is a wider category than “officer of the United States,” as used in the Appointments Clause. The 2009 OLC memorandum rejects the older OLC position, right? But, where is the principled explanation of what is wrong with the prior memoranda? And, Marty, which is correct – as a matter of original public meaning – the former OLC view or the 2009 view? If you cannot commit yourself to the OLC’s (new) 2009 view, then perhaps you should withdraw the OLC memorandum as persuasive scholarly authority of original public meaning? It is just a thought.

Like I said, I harbour doubts about this memorandum.

I guess that is all I have time for now Marty. I hope to answer your questions very soon. I hope you will answer my questions here in some meaningful public fashion. And, while you are at it, why not answer Hashim’s question too. (And Hashim – God bless you – and the other “first 400 people listed in the Boston telephone directory”!)

Regards,

Seth

PS: As to burden shifting . . . just a quick thought . . . see C.J.S. Officers § 23 (2010) (“The courts have a duty to liberally construe words limiting the right of a person to hold office . . . . Ambiguities should be resolved in favor of eligibility to office, and constitutional and statutory provisions which restrict the right to hold public office should be strictly construed against ineligibility.”); CASES OF CONTROVERTED ELECTIONS, DETERMINED IN COMMITTEES OF THE HOUSE OF COMMONS 587 (T. Falconer & E.H. Fitzherbert eds., 1839) (“In all cases respecting eligibility, eligibility is to be aided, and ineligibility ought to be strictly proved. Severe penalties are imposed by the acts of parliament creating disqualification, and they are not favoured.”), available at http://tinyurl.com/722ldmt.

Marty Lederman said...

Very briefly: I did not cite the 2009 OLC memorandum as "good authority" for the Dorf view of the Clause. I cited it simply as the most recent evidence demonstrating that the Executive and Congress have for well over a century been of the view that the language of the Clause unambiguously *covers* the Presidency -- a view shared by scholars as disparate as Amar and Calabresi, Prakash and Teachout.

That doesn't mean, of course, that that dominant view is the correct one. But surely it is strong evidence that the Presidency is not *unambiguously excluded* from the scope of the Clause. It's either unambiguously included, or the text is ambiguous, as Seth himself concluded it was just this past April. See https://www.law.northwestern.edu/lawreview/Colloquy/2012/7/LRColl2012n7Tillman.pdf, at *14 ("I do not suggest that the Constitution’s text, drafting history, and ratification debates are free from all ambiguity on the meaning of Office . . . under the United States.").

Either way, "original public meaning" would not *preclude* Mike's construction, even if one is an "original public meaning" proponent.

Seth Barrett Tillman said...

Dear Marty,

In your last contribution in the comments, some things you put in quotation marks, and others you put within asterisks. I do not understand what you mean. Are you quoting someone when you use asterisks? Who? Where?

You also refer to “the Clause”. Which clause? Is it the Incompatibility Clause (that Prof. Dorf and I were originally discussing) or the Foreign Emoluments Clause (as in the OLC memorandum)? Is your point that the discussion in the OLC memorandum relating to the Foreign Emoluments Clause (using “Office of Profit or Trust under them [the US]”) maps precisely onto the Incompatibility Clause (using “Office under the US”)? If that is your point, then you and I are in agreement. It is Prof. Dorf who questioned the intratextual maneuver. He suggested that the ambiguity should be resolved via structuralism. You do see that? If you are supporting some version of intratextualism (contra Dorf), you ought to tell us whether you are taking Amar’s approach (all office language in the Constitution is coextensive) or the more limited approach I have espoused distinguishing “office under the US” from “officer of the US”). Why stay silent?

There is no “dominant view.” The views of “Amar and Calabresi, Prakash and Teachout” are not “disparate.” They contradict one another. Prof. A. Amar thinks all constitutional office-laden is co-extensive, includes the P, but not members of Congress. Prof. Calabresi suggests “office under the US” is a superset of “officer of the US,” includes the P, but excludes member of Congress. Prof. Teachout would include members of Congress. (Teachout’s view is the view Doug called “absurd,” right?)

As to Prakash, after my exchange with him in 2009, he wrote: “[T]he Appointments Clause provides that the President ‘. . . appoint’ all officers of the US. . . . [T]he President must commission all officers of the US.” Appointment Vests, SSRN 14 (emphasis added). This would seem to exclude the VP & P from “officers of the US.” Moreover, Amar, Prakash, and Calabresi were not aware (as far as I know) of the Hamilton letter and the French Ambassador’s gift to GW when they wrote on the Foreign Emoluments Clause. They have written that GW precedents are entitled to great respect.

Even if there was a dominant view at one time, I don’t think there is one anymore: as to whether the P and VP fall within “office under the US” language. See Brownell II, Can the President Recess Appoint a Vice President?, 42 PRESIDENTIAL STUD. Q. 622 (2012) (peer reviewed) (affirming that the standard view is that the VP is not an “officer of the US”); see also Hashim; cf. Manning’s new article in B.U. L. Rev. (Thanks John!)

Your statement to the effect that “the Executive and Congress have for well over a century been of the view that the language of the Clause [?] unambiguously *covers* [?] the Presidency” is odd. The judiciary? Hasn’t there been a long series of judicial opinions (ending with Free Enterprise) excluding the P and VP from the scope of “officer of the US.” Hasn’t Congress continuously since 1789 drafted statutes imposing disqualifications against those convicted of certain crimes? Those disqualifications preclude the convicted person from holding “Office . . . under the US.” De Veau (1960) (Frankfurter, J., plurality). That language cannot extend to elected office. See FEDERALIST; Powell; US Term Limits. Should not one conclude when Congress uses “Office under the US,” it did not intend to cover the P and VP?

Marty, I appreciate your quoting me. But the next sentence – which you left out – is important too. I wrote:

“Still, I do not suggest that the Constitution’s text, drafting history, and ratification debates are free from all ambiguity on the meaning of Office . . . under the US. Fortunately, we can turn to two incidents from President George Washington’s first administration to understand the meaning of this somewhat opaque phrase.”

Bottom line – unless you can account for the Hamilton letter and the GW gifts, etc. . . . .

Seth

Marty Lederman said...

In the category of rapidly diminishing returns (to say nothing of readership), my quick 'n' dirty responses to Seth's latest:

1. My point was that the views of Amar and Calabresi, Prakash and Teachout are "disparate" on many matters, including the ones you mention, but that it is therefore very telling that they all *agree* with the overwhelming consensus view of the political branches over a very long period of time that the Presidency is obviously covered by the text of the Ineligibility and Foreign Emoluments Clauses. *That* is why I called it the "dominant" view. (Asterisks, like italics, indicate emphasis, Seth.) And if there is such a widespread consensus view that the text unambiguously covers the presidency, then surely it is, to say the least, highly doubtful that that same text *unambiguously* excludes that office.

2. I'm not aware of "a long series of judicial opinions (ending with Free Enterprise)" that even address the issue, let alone that hold that the P and VP are excluded from the scope of “officer of the US” in those clauses (or any others, for that matter).

3. As for allegedly omitting a key sentence from your piece: Yes, I -- and all readers here -- know that in order to *address* any ambiguity created by the text of the two clauses, you would turn to the *presumed* understanding of Washington and Hamilton that you claim to be reflected in actions they took in the first years of the Constitution.

I am not as quick as you to assume that those actions necessarily reflected a considered view on the question by those important actors. But even if I were, the point I have been trying to make in this whole thread is that, contrary to your post, Mike has not failed to establish the textual ambiguity that would, under "original public meaning" jurisprudence, justify resort to other modes of interpretation, such as structural coherence, historical understandings, prudence, and fealty to the objectives that manifestly animate the two clauses.

Your first sentence was correct, and you don't now abandon it -- the text is ambiguous (at best -- if not plainly covering the POTUS); and therefore it is undoubtedly legitimate for Mike to invoke those modalities, to be considered along with your Washingtonian and Jeffersonian anecdotes by anyone now trying to decide whether the two clauses cover the presidency.

Dewaite Houwad said...

Twww.windows7keysp.como which Mike responds: OK, you've provided some evidence that some very important people at the time acted in a way that indicates that they assumed the POTUS and VP were offices, but not offices "under the United States." But at the very least the language of the phrase bears the *natural* reading, too, and so we have the requisite ambiguity to go beyond original public meaning.http://www.windows7keysp.com/

Seth Barrett Tillman said...

Dear Marty,

Asterisks are for emphasis. Fine. But, in context of my exchange with Professor Dorf, here on Dorf on Law, your usage seemed, at least, a bit odd, strange. On Dorf on Law, I did not take the position that the text (even under an original public meaning analysis) *unambiguously* established that the President and VP were beyond the scope of the Incompatibility Clause or similar language in other clauses, such as the Foreign Emoluments Clause. So why you would want to emphasize this point seems kind of obscure.

Quite the opposite, what I told the reader in my initial Dorf on Law post was: “If we are looking for constitutionally based rationales for precluding a dual office-holding VP-Member, we could turn to several interpretive modalities. Here, I am going to examine the Constitution’s text. . . .and [later I will] return to other modalities.” In my reply, I wrote: that Dorf’s characterization of my position as “airtight” was too strong; rather, I characterized my original public meaning interpretation as “not compelled by the text” and “(arguably) insufficient.” I don’t back away from that.

In short, Marty, you were emphasizing a point that neither Dorf nor I disputed.

In principle, I never objected to Dorf’s structural turn. Don’t you see that? I objected to his application of structuralism: assuming aspirational or normative consistency, after (apparently) rejecting linguistic unity and consistency. I also objected to a structural argument based on separation of powers norms because the more analogous normative principles flow from Powell and US Term Limits. I.e., Qualifications. I also objected to his turn to structuralism after having (seemingly) conceded the text-reliant case. I did not suggest that the text-reliant case could not be rebutted, only that Dorf had not rebutted it (with evidence). And, no, modern linguistic practices are not evidence. They raise presumptions of linguistic continuity. Here, that presumption has been rebutted by GW-era evidence. Marty, if you want to get (back) to ambiguity, you need something other than Doug’s preconceptions. That’s gone. Dust in the wind. You need a contemporaneous document or practice. Evidence.

I give Prakash, Calabresi, and Amar credit for consistently emphasizing the importance of GW-era precedents. Their comments on the Foreign Emoluments Clause were, like the OLC memorandum, drafted (apparently) absent full knowledge of the relevant history. So they get (in my mind) little weight. Perhaps one day, they’ll clarify their position. Then we will know what they think, and why. As for Teachout, you are welcomed to quote her here in regard to these precedents. We will see who you convince.

Judicial precedents?

Free Enter. Fund, 130 S. Ct. at 3155 (2010) (Roberts, C.J.):

The diffusion of power carries with it a diffusion of accountability. The people do not vote for the ‘Officers of the United States.’ Art. II, § 2, cl. 2. They instead look to the President [Tillman adding–who is elected] to guide the ‘assistants or deputies . . . subject to his superintendence.’ The Federalist No. 72, p.487 (J. Cooke ed. 1961) (A. Hamilton). . . . That is why the Framers sought to ensure that ‘those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade [officers], and the highest [officers], will depend, as they ought, on the President, and the President on the community.’ 1 Annals of Cong., at 499 (J. Madison).

(emphasis added)

United States v. Mouat (US 1888) (Miller, J.)

Unless a person in the service of the Government, therefore holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments . . . he is not strictly speaking, an officer of the United States.

(emphasis added)

Marty, Presidents are not appointed; they are elected; people vote for them. Your problem is not with me. It is with the Court and the CJ and Miller J.

Seth

Marty Lederman said...

I'm fairly confident this is no longer worth the candle (if it ever was). But in case anyone still cares, two brief points:

1. You now say, Seth, that you did not deny textual ambiguity. But you specifically argued that Mike "cannot rely" upon structural, historical and normative modalities of interpretation as "a solution to bona fide ambiguity" because Mike "has not put any evidence forward that in 1789 the meaning of Office under the United States (as used in the Incompatibility Clause) was in doubt." If you now agree, as you did earlier this year, that the text is indeed (at best) ambiguous, then the question can and should be addressed by resort to considerations other than "original public meaning," such as those Mike invokes.

2. The case law snippets you now cite suggest that the Presidency is not an office at all. But I had thought you conceded that it is an office, and that the only question in dispute is whether that office is "under the United States."

Seth Barrett Tillman said...

Dear Marty,

Marty, come on, take another look, let’s not plod over ground that is easy. Both cases – Free Ent & Mouat – which I put forward use “officer of the United States” language. That’s the relevant language.

I have said from the beginning ... the P and VP can be properly characterized in the language of “office” and “officer” standing alone and unmodified. See Impeachment Clause. Elected positions are collectively referred to as “public trusts under the United States”. “Officers of the United States” and “Offices under the United States” refer to different groups of appointed officers. Both cases I cited – Free Ent. & Mouat – expressly use the “officer of the United States” language, which would not apply to the P and VP. And why? Because they are elected. And that is what the Court said in Free Enterprise: “The people do not vote for the ‘Officers of the United States.’”

If you want to call the Court’s and CJ Robert’s reliance on Hamilton, The Federalist, Madison, and The Annals a snippet, you are welcomed to that characterization. My guess is that if you had a Supreme Court (or any federal court) decision which indicated that the President or VP was an “officer of the United States” or “officer under the United States” as used in the Appointments Clause (per Free Enterprise Fund) or any other clause (Foreign Emoluments Clause or Incompatibility Clause), you would have put it forward. And if and when you do produce that “snippet” from a contrary federal decision, then we can discuss their relevant weight and which decision is more on-point and better (or best) informed. I am happy to have that discussion when you or Doug or Paul or anyone produce something – anything – like evidence.

Likewise, since the Founding, Congress has continuously passed statutes extending statutory disqualifications to those convicted of specified crimes. The disqualifications preclude the convict from holding an “office . . . under the United States.” That cannot extend to the P or VP or a Senate or House seat. Per McCormack. So my position has – evidence – from the judiciary and Congress, and circa 1789 from the Executive Branch (when it really counted). Your position has linguistic understandings that are 200+ years out of date, and scholars who (as far as I can tell) were completely unaware of the GW precedents.

Your first objection in your last response misunderstands my prior posts here and my prior publications. On Dorf on Law, I did not “deny” that the text was “ambiguous.” No one asked me and I never addressed it. What I said was that there are multiple modalities or strategies that properly play a role in interpreting the text. I started with text. When Professor Dorf took the textual issue off the table and turned directly to structure, I objected in part because he left unclear what role such a structural interpretive turn should play. You can’t use structure to resolve ambiguity unless you first establish ambiguity. But Dorf took the textual issue off the table. Your problem is with him, not me.

No, I did not say earlier this year that the text was “ambiguous.” I wrote:

I do not suggest that the Constitution’s text, drafting history, and ratification debates are free from ALL ambiguity on the meaning of Office . . . under the United States. Fortunately, we can turn to two incidents from President George Washington’s first administration to understand the meaning of this somewhat opaque phrase. (emphasis added)

Again, if we only had access to text, drafting history, and ratification debates, then we could not resolve “all” ambiguity. But once we add the GW precedents into the mix, then a full OPM analysis is over. You never get to structure; it ends with OPM. That’s my view. It is what I have said all along. If you and others don’t agree that the “ambiguity” is resolved by the GW precedents, that’s fine. But rejecting Hamilton and GW requires something other than your finding contrary evidence inconvenient to your closely held beliefs. Or, at least, it should.

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