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Archive of posts filed under the Incompatible Offices category.

Scalia, Trump, Tillman and the Foreign Emoluments Clause

Apropos of the debate whether the president holds “any Office of Profit or Trust under [the United States]” within the meaning of the Foreign Emoluments Clause (art. I, § 9, cl. 8), reference has been made to a December 1974 memorandum written by Antonin Scalia, then the Assistant Attorney General for the Office of Legal [...]

Not So Fast, Speaker Winfrey

Is it a “fact” that non-members of the House are constitutionally eligible to serve as Speaker? The keepers of congressional knowledge and precedent (i.e., the Parliamentarians, the House historian, and other recognized experts on this sort of thing) would tell you, with perhaps an unwarranted degree of confidence, that the answer to this question is [...]

Can the Chairman of the House Budget Committee Preside Over the Senate?

Update: Professor Tillman responds in the comments Professor Seth Barrett Tillman emails to remind us (among others, see Election Law Blog and the Originalism Blog) of his theory that the President and Vice-President do not hold “offices under the United States” within the meaning of the Incompatibility Clause, and thus that there is no constitutional [...]

Are Lindsey Graham and Scott Brown Incompatible?

Under Article I, section 6, clause 2, I mean. That Clause provides in pertinent part that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” Under this provision, known as the Incompatibility Clause, holding an office “under the United States” is deemed incompatible [...]

Senator Gregg’s Recusal

         Senator Judd Gregg (R-NH), nominated by President Obama to be Secretary of Commerce, has announced that he will not be voting on the stimulus bill or other legislation while his nomination is pending.  This decision has been criticized, as the linked article suggests: “Gregg’s decision to recuse himself from voting is bound to raise [...]

Is Hillary Clinton Unconstitutional?

          On Friday, December 19, 2008, the President signed into law S.J. Res. 46, which provides “[t]he compensation and other emoluments attached to the Secretary of State shall be those in effect January 1, 2007, notwithstanding any increase in such compensation or emoluments after that date under any provision of law, or provision which has [...]

The Emoluments Clause and the “Saxbe Fix”

          The Emoluments Clause of the Constitution, art. I, § 6, cl. 2, provides that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office . . . the Emoluments whereof shall have been encreased during such time.”  In plain English, this means that if Senator [...]

Can Joe Biden Be Vice President and Senator at the Same Time?

              ABC News asks “Why Hasn’t Joe Biden Resigned His Senate Seat?”  Perhaps the answer is that Senator Biden, who is after all a law professor in his spare time, is familiar with this recent work of legal scholarship concluding that one can be President (or Vice-President) at the same time one holds a [...]