Congressman and Vice President and President of the Senate: Can Paul Ryan hold them all at the same time? -- First in a Series of Guest Posts by Seth Barrett Tillman

Introductory note from Mike Dorf: This guest post by Seth Barrett Tillman--a Lecturer in Law at the National University of Ireland, Maynooth--builds on some of his prior academic articles on the Constitution's Incompatibility Clause (three of which you can find here, here and here).  The post is made timely by the news that Paul Ryan will be on the ballot in Wisconsin both for VP and for his House seat.  Meanwhile, because of the way my software looks, Professor Tillman's post has my name at the bottom, but that's just because it's being posted from my account.  Just after his post, I'll have a short post of my own commenting--and he'll post a reply later in the week.
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Congressman and Vice President and President of the Senate: Can Paul Ryan hold them all at the same time?

by Seth Barrett Tillman

I want to thank Professor Dorf for giving me the opportunity to blog here. Some might say he is taking a big risk. Here is why. Over the next few days, I intend to put up a series of posts and I invite you to come with Alice and with me for a new Adventure in [Constitutional] Wonderland. I am going to ask you to temporarily suspend your deeply held intuitions and your disbelief. I am going to ask you to believe, not 3, not 6, but 10, 12, or 100 impossible things before breakfast, lunch, and dinner, and even while asleep. But, more than that, I am going to ask you to do something we talk about a great deal in law and law school, but often find difficult to do in practice. I am going to ask you to keep an open mind, to consider my entire argument and evidence, and then to independently make up your mind. If you have questions along the way, I will try my best to answer them in a timely fashion. It is also possible that you may know or uncover something I had overlooked. So, I will need to keep an open mind too. I promise to do my best. Hopefully, even if we disagree, we can all be civil, and, perhaps, learn something too.

The quadrennial national election is this November. The presidential electors meet and vote in December. The new congressional term will start on January 3, 2013. The new Congress will count the electors’ votes on or after Sunday, January 6, 2013. But, the new presidential/vice-presidential term will not begin until on or after Sunday, January 20, 2013. Those Sundays make everything more complex!

It has been reported that Paul Ryan will appear on the ballot for both his congressional seat and for Vice President. If he wins both, can he retain both? Wisconsin state law has something to say about dual office-holding. I hope to return to that question later. Here, I want to focus on federal constitutional law. Until January 20, 2013, there is not much of a problem – before January 20, Ryan will not be VP. He will just be vice president-elect. But after January 20, 2013?

This is just nuts. Right? Simultaneous VP-Member of Congress – that is plainly prohibited by the Constitution. And it is a horrible result to boot. And it is impractical: even if Ryan could do it, he will not. Like I said, keeping an open mind is difficult.

Assuming he could, would Ryan attempt to do it? I think not. But times and candidates change. A future candidate might do it even if Ryan will not. And if that is a bad result, much better to have the conversation now.

Is it a horrible result? Leaving your views of candidate Ryan aside, you could think it horrible because it concentrates too much power in one person. That is a legitimate policy concern. But not every good result is mandated by the Constitution, and not every bad result is precluded by it. Policy and law overlap, but they are not the same.

So that takes us back to whether dual office-holding – i.e., VP and Member of the House – is precluded by the federal Constitution. 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. Some people call this textualism, originalism., or interpretevism. Some people (naïve perhaps) call this the rule of law, and others think this strategy is bunk. I plan (?) to start with this modality and to return to other modalities (and Wisconsin law) later on.

What does the Constitution say about dual-office holding? The exclusive provision that would seem to apply here is the Incompatibility Clause, which states: “[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” So the question comes to this … if the VP is an “Office under the United States,” then Ryan cannot hold both positions at once. And if the VP is not an “Office under the United States,” then Ryan can. Simple.

Simple, but it does not get us very far. And you might think it obvious that the President and VP are officers under the United States. Here, I am going to put forward some argument and evidence suggesting that the President and VP are neither officers of nor under the United States.

First, I look to the language’s purpose. Discussion surrounding the Incompatibility Clause at the Federal Convention and at the ratifying conventions indicated that the purpose of the clause was to keep the President from placing Members of Congress into future cabinet or other statutory positions. I have found no discussion suggesting the purpose of this clause was, in whole or in part, to keep Members of Congress out of elected positions: the presidency or vice presidency.

Second, if you look to the entirety of the Constitution of 1787, although it describes the presidency and vice presidency as an office (unmodified), and, on another occasion, it describes the VP as an officer of the Senate, it never expressly describes either the President or VP as an officer of the United States or an officer under the United States. Professor Akhil Amar has put forward the (somewhat curiously atextual) position that these two phrases are co-extensive. I think the former is a subset of the latter, but neither includes elected federal positions.

Third, the Commission Clause states: “[The President] . . . shall Commission all the Officers of the United States.” All means all. But Presidents do not self-commission; they do not commission their VPs; they do not commission successor Ps and VPs. (Remember Bush v. Gore? Did Clinton ever try to terminate the litigation – or even strengthen Gore’s hand – by granting Gore a commission? David Boies eat your heart out!) So if the President and VP are not officers of the United States, and officer of the United States is co-extensive with officer under the United States (as suggested by Akhil Amar), then the Incompatibility Clause does not apply to the Vice President. Cf. Letter from Samuel Chase to John Marshall (April 24, 1802) (“I apprehend that, no one can hold any Office under the United States, without a Commission to hold such office.”).

Just one more Just So Story. Secretary of the Treasury Alexander Hamilton was ordered by the Senate in 1792 to compile a list of “every person holding any civil office or employment under the United States” and their salaries. After nine months, he returned a 90-page list which omitted the President, Vice President, Senators, and Representatives. But it did include appointed or statutory officers in each of the three Branches. For example, he included: the Secretary of the Senate and his staff, and the Clerk of the House and his staff. For Hamilton, on this occasion at least, Office under the United States embraced only appointed or statutory officers, not the President or VP, i.e., holders of elected or constitutionally-created positions.

Text. Purpose. Hamilton. Chase. There is good warrant for concluding that the VP is not an Officer of or under the United States, and therefore the Incompatibility Clause does not apply to it, and will not apply to Ryan should he become VP.

You might ask: OK, Tillman, if the President and VP are not officers under the United States, then what are they? They are holders of public trusts under the United States. See Article VI.