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 Counsel. See Memorandum to the Honorable Kenneth A. Lazarus, Assoc. Counsel to the President, re: “Applicability of 3 C.F.R. Part 100 to the President and Vice President” (Dec. 19. 1974). Professors Seth Barrett Tillman and Josh Blackman have suggested that this memorandum is relevant to the debate, presumably in providing support for Tillman’s position that the president is not covered by the Foreign Emoluments Clause. Indeed, Tillman here cites the 1974 memorandum as contrary authority to a subsequent OLC opinion that expressly acknowledges that the Clause applies to the president.

For those unfamiliar with the background, Professor Tillman has long maintained that the president (and vice president) do not hold (1) “any Office of honor, Trust or Profit under the United States” within the meaning of the Disqualification Clause (art. I, § 3, cl. 7); (2) “any Office under the United States” within the meaning of the Incompatibility Clause (art. I, § 6, cl. 2); (3) “an Office of Trust or Profit under the United States” within the meaning of the Elector Incompatibility Clause (art. II, § 1, cl. 2); and, of course, (4) “any Office of Profit or Trust under [the United States]” within the meaning of the aforementioned Foreign Emoluments Clause.

It is fair to say that these claims were greeted with a large degree of skepticism by this blog. See, e.g., here (Disqualification Clause); here (Incompatibility Clause); and here (Foreign Emoluments Clause). At the time, however, the stakes were low with regard to a debate of primarily academic interest.

The stakes are higher now. The president-elect has received some criticism for refusing to divest himself of a large portfolio of international business interests. Among other things, this situation is said to create a high probability or virtual certainty (depending on whom you ask) that Mr. Trump will be in violation of the Foreign Emoluments Clause once he assumes the presidency. This thesis, of course, assumes the Clause applies to the president, and therefore it becomes a matter of some importance to know whether there is anything to Professor Tillman’s position.

Continue reading “Scalia, Trump, Tillman and the Foreign Emoluments Clause”

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 “yes.”

The basis of this answer seems to be the following: (1) the Constitution says only that the “House of Representatives shall chuse their Speaker and other Officers,” but does not specify any qualifications for these positions; (2) it is well accepted that the House’s “other Officers” (e.g., Clerk, Sergeant at Arms and Chaplain) need not be, and indeed never are, members; (3) although the House has always elected a member as Speaker, an occasional vote for a non-member candidate has been cast without being ruled out of order; and (4) various congressional publications say in passing that a non-member could serve as Speaker. The last point, of course, is a somewhat circular reason as it merely reflects the written assertion by some of the congressional experts already noted.

Personally, I have not questioned this received wisdom, but I haven’t thought much about it either. Now, however, with the House speakership up for grabs, some people are discussing, with more or less seriousness, whether the House could look outside its membership for a candidate. Suggestions have included Newt Gingrich, Arthur Brooks and Oprah.

Some lawyers and scholars argue that allowing a non-member to be eligible for the speakership would violate separation of powers principles by, for example, raising the possibility that the President or Vice-President could simultaneously serve as Speaker.  Professor Schaub also argues that a non-member Speaker would conflict with the constitutional text, particularly the fact that “the Constitution vests its specified legislative powers in Congress, composed of a Senate and a House, each in turn composed of members, elected by the people.” Therefore, she argues, “[l]egislative powers cannot be lodged in the hands of a non-legislative person.”

These arguments are not without force, but it seems to me that they largely go to why the House should not, rather than cannot, elect a non-member as Speaker. Schaub may be right that “it simply never occurred to [the Framers] that someone would take it into his head to contend that the Speaker of the House could be an individual who was not a fellow legislator.” But Professor Tillman is right that the mere fact that the Framers and everyone else expected the Speaker to be a member is not enough to prove that there is a constitutional prohibition on electing a non-member to that position.

This is particularly true when you consider that the Constitution expressly leaves the choice of Speaker up to the House. The Framers may have very well assumed that the House would never consider a non-member as Speaker except in extraordinary circumstances; it doesn’t follow that they saw the necessity to preclude the House from choosing a non-member under any circumstances.

A strong argument against the constitutional eligibility of non-members would depend on showing that the meaning of the word “Speaker” as used in the Constitution was limited to members of a legislative body. As Professor Rappaport notes, it would be a necessary, but not sufficient, component of this argument to show that the speakers of the British House of Commons and state/colonial legislatures were invariably members of the body.

What about the semantic content of the word “speaker” at the time of the framing? Johnson’s Dictionary gives one meaning of “speaker” as “the prolocutor of the commons,” which is very helpful unless, like me, you have no idea what “prolocutor” means. Fortunately, it defines “prolocutor” as “the foreman; the speaker of a convocation.” And it defines “foreman” as “the first or chief person.” So one might argue that the “speaker” of a legislative body is the first or chief person of that body, and therefore necessarily a member (as the foreman of a jury is necessarily a member). Not a terrible argument, but hardly a slam dunk either.

In short, the question of whether a non-member can be Speaker remains an open constitutional question (the House never having had occasion to address it in a serious way) and the correct answer is less than obvious, at least to me.

A Tenuous Recess Appointment in Virginia

An interesting recess appointment issue has arisen in the Commonwealth of Virginia. Article VI, section 7, of the Virginia constitution provides that justices of the state supreme court, who serve for 12 year terms,  “shall be chosen by the vote of a majority of the members elected to each house of the General Assembly.” Under Article V, section 7, the constitution also provides that “[t]he General Assembly shall, if it is in session, fill vacancies in all offices which are filled by election by that body.”

The governor, however, has the “power to fill vacancies in all offices of the Commonwealth for the filling of which the Constitution and laws make no other provision.” Va. Const., art. V, § 7. This includes making temporary appointments to fill supreme court vacancies when the General Assembly is not in session: “Gubernatorial appointments made to fill vacancies in offices which are filled by election by the General Assembly . . ., made during the recess of the General Assembly, shall expire at the end of thirty days after the commencement of the next session of the General Assembly.” Id.

These provisions came into play earlier this year when a sitting justice of the Virginia Supreme Court (LeRoy F. Millette, Jr.) announced his retirement effective at the end of July. Because the General Assembly was not in session, Governor McAuliffe recess appointed Fairfax Circuit Court Judge Jane Marum Roush to fill the vacancy on a temporary basis. No one disputes that this was within the governor’s power under the above-cited provisions.

Matters became more complicated, though, when McAuliffe called a special session of the General Assembly to consider revising the state’s congressional districting map, which had been struck down by the federal courts. See Va. Const., art. IV, § 6 (“The Governor may convene a special session of the General Assembly when, in his opinion, the interest of the Commonwealth may require . . . .”). The General Assembly convened on August 17, 2015, pursuant to the governor’s call.

Once the special session convened, the General Assembly undeniably had the power to elect a “permanent” (i.e.. for the remainder of the 12-year term) replacement for Justice Millette. Republicans in the legislature attempted to elect another judge to fill the seat, but this move was blocked in the senate. The senate then voted to adjourn sine die. The house, however, neither adjourned nor consented to the senate’s adjournment.

Everyone agrees that when the General Assembly convened on August 17, it commenced the “next session” of the General Assembly following Roush’s recess appointment. Thus, the thirty-day clock started on August 17, and Roush’s appointment expired on September 16.

The controversy centers on whether the senate’s vote to adjourn sine die has ended the General Assembly’s special session. If not, the General Assembly remains in session and retains the power and responsibility to fill the seat that Judge Roush had temporarily occupied.

This is the view of the speaker of the Virginia House of Delegates. In a letter to the governor, the speaker relies primarily on the following provision of the Virginia constitution: “Neither house shall, without the consent of the other, adjourn to another place, nor for more than three days.” See Va. const., art. IV, § 6. This “clear, unambiguous and emphatic” language, according to the speaker, establishes that the senate cannot unilaterally end the General Assembly’s session. Thus, the senate’s adjournment sine die was ineffective and the General Assembly remains in session. Under the speaker’s position, the General Assembly’s session would not end until both houses agree to adjourn or until “dissolution by the efflux of their time,” which would presumably occur at the beginning of the new legislative session in 2016. Cf. House Rules and Manual § 590 (Jefferson’s Manual of Parliamentary Practice).

The governor’s position, explained by his counsel Carlos L. Hopkins, is otherwise. Hopkins maintains that the senate’s adjournment sine die was effective. His primary argument is that the adjournments clause relied on by the speaker applies only to regular sessions, not to special sessions. As an additional (or possibly alternative) ground, he contends that “the lack of continuous activity or remaining business before the General Assembly argues against the body continuing to remain in session.”

Based on the legal position that the General Assembly was no longer in session, the governor gave Roush a second recess appointment after her first one expired.

Key to assessing these competing claims is understanding the history of the relevant provisions of the Virginia constitution and their relationship to the corresponding provisions in the U.S. Constitution. I do not purport to be an expert on the Virginia constitution, but I am well acquainted with the law and practice of recess appointments at the federal level (click on the “Recess Appointments” category to the right if you don’t believe me).

This background plus the research set forth below convinces me that the Virginia adjournments clause applies to special sessions and thus the senate’s adjournment on August 17 was ineffective. The argument that the General Assembly is no longer in session because it has ceased to conduct any business is somewhat stronger, but, for the reasons set forth below, the better view is that the General Assembly remains in session. Accordingly, Governor McAuliffe’s second recess appointment of Judge Roush appears to be invalid.

Continue reading “A Tenuous Recess Appointment in Virginia”

Professor Seth Barrett Tillman: Hillary Can Run from Jail

(see update below) More precisely, Tillman argues here that any attempt to disqualify former Secretary Clinton from the presidency based on conviction of a crime, including 18 U.S.C. § 2701 (which provides that anyone convicted “shall forfeit his office and be disqualified from holding any office under the United States”), would be unconstitutional. FWIW, I think he is right.

Now if Clinton were to be elected to the presidency while actually serving time in prison, a different set of issues would be presented. But I think we can cross that bridge when we come to it.

(Clarification: Tillman does not believe that section 2701’s disqualification language is unconstitutional, but he believes it would be unconstitutional if it were intended to apply to the presidency and other elected positions. In part for this reason, he would interpret the “office under the United States” language as not applying to elected positions).

Update: former Attorney General Mukasey, to whom Tillman was in part responding, has emailed Professor Eugene Volokh to acknowledge “on reflection, … Professor Tillman’s [analysis] is spot on, and mine was mistaken…. The disqualification provision in Section 2071 may be a measure of how seriously Congress took the violation in question, and how seriously we should take it, but that’s all it is.” 

Quinnipiac Law Review Symposium on the Disqualification Clause

A forthcoming issue of the Quinnipiac Law Review features four articles responding to Benjamin Cassady’s “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209 (2014). The editors were kind enough to ask me to write the foreword, which you can find here. It’s extremely hilarious and entertaining. (Not really).

The articles by Peter Charles Hoffer, Brian C. Kalt, Buckner F. Melton, Jr. and Seth Barrett Tillman are well worth reading.

Gaming out the Coming Confirmation War

There is a reasonable possibility that the Republican-controlled Senate will refuse to confirm any of President Obama’s nominees (or any such nominees who fall into particular categories) in the next Congress. By refusing to confirm nominees, the Republicans would be remedying (it might be argued) the illegal use of the “nuclear option” last year, which allowed Senate Democrats to confirm numerous nominees who otherwise would have been blocked by Senate rules. Senator Ted Cruz has also proposed that the Senate refuse to confirm any Obama nominees, except those in “vital national security positions,” as a response to the executive order on immigration announced this week.

Were this to occur, the issue of recess appointments may again rear its ugly head. To my knowledge, there are currently no recess appointees serving in the administration. It is possible that the President could make recess appointments during the lame duck period, but I assume that House Republicans will foreclose this by refusing to adopt any adjournment resolution that might open the door to such appointments. Instead, each house will (I am guessing) formally adjourn for no more than three days at a time, holding pro forma sessions when necessary for the remainder of the 113th Congress.

One might assume that this pattern would continue for the 114th Congress. However, if the Senate is embargoing most or all Obama nominees, the congressional leadership may see an advantage in allowing the administration to use recess appointments as a safety valve to fill critical or emergency vacancies. If that were the case, the House and Senate would “recess” (which now should be taken as a technical term meaning a concurrent adjournment of both houses for more than three days) from time to time, allowing Obama to make recess appointments during this period.

Any recess appointments made subsequent to the commencement of the first session of the 114th Congress (scheduled for January 6, 2015) would last until the end of the next Senate “session,” which, according to the conventional wisdom endorsed by the Supreme Court in Noel Canning, would normally mean that recess appointees would serve until the end of the Obama administration.

But is this necessarily the case? Professor Seth Barrett Tillman, in a colloquy several years ago with Professor Kalt, argues that the Senate may terminate a recess appointment simply by adopting a resolution declaring its session to be at an end and then promptly re-convening in a new session. Kalt disagrees, contending that both the House and Senate must act together in order to end a session and contending that even this would be a “constitutional impropriety” because it would involve the House in matters relating to appointments and confirmations.

I think Kalt is clearly right that once Congress convenes, both the House and Senate must agree before the session can be ended. It should also be noted that the administration may argue (incorrectly, in my view) that convening a new session of Congress prior to the constitutional default date requires enactment of a law.

Unlike Kalt, though, I see no constitutional impropriety in the House and Senate deciding to formally recess, say, twice a year, once in the summer and once for the Christmas holiday, as clearly intended by the Laws of Nature and of Nature’s God. During these recesses, the President could make recess appointments that would last until the next recess (i.e., the end of the next session). Adopting such “Tillman adjournments” would give the President the ability to fill critical vacancies while limiting the duration of recess appointments to prevent abuse. It would also re-establish the “recess” as the period between “sessions,” as clearly intended by the framers.

The President could make successive recess appointments to keep a particular vacancy filled. But he could not re-appoint the same individual to fill the vacancy, at least not if that person wanted to be paid.

 

In Case You Haven’t Had Enough of the Disqualification Clause Already

Professor Brian C. Kalt has posted this response to Benjamin Cassady’s article on the Impeachment and Disqualfication Clauses. (Hat tip- Seth Barrett Tillman. Apparently there is a whole symposium on this topic, and more articles will be forthcoming). I had to smile when I read Professor Kalt’s opening paragraphs:

Benjamin Cassady has put great effort into an arcane subject: When someone is impeached and convicted, and disqualified from any “office of honor, trust, or profit under the United States,” can that person be elected to Congress? I am one of a group of people who would discuss subjects like these endlessly, but for the fact that members of our group can be hard to find. As such, I am extremely grateful for the opportunity both to read Mr. Cassady’s article (referred to below as Your Crook) and to write this response.

This response will disagree with some things in Your Crook, and the discussion may get a bit animated. But this is the excited disagreement of a kindred spirit, not of a harsh critic. When football fans shout at each other about who was the greatest running back in NFL history, it is because they love football, and because they have more fun probing their disagreements than they would cataloguing their much-more-voluminous common ground. So too with the Disqualification Clause of the Constitution. I agree with Your Crook that disqualification does not apply to election to the House or Senate, and I agree that voters should have as free a hand as the Constitution will allow to elect representatives and senators that others in Congress might find scurrilous.

For what its worth, I pretty much agree with everything that Kalt has to say with regard to the application of the Disqualification Clause to the House and Senate. His claim that Barry Sanders is the greatest running back of all time, on the other hand . . .

 

Is the Presidency an Office “Under” the United States?

Applying Benjamin Cassady’s “electoral pardon” principle might suggest that the Disqualification Clause is inapplicable to the presidency (and vice-presidency). After all, if voters are allowed to disregard a candidate’s prior impeachment (or expulsion) and elect “their crook” to Congress, why shouldn’t the same hold true for a candidate for president? Professor Tillman maintains that the Disqualification Clause doesn’t apply to any elected offices, whether in Congress or the executive branch, thus consistently preserving the “electoral pardon” principle. Cassady, on the other hand, contends that the Framers did not take the principle that far:

[I]t should be noted that the Presidency was a uniquely American institution, substituting an elected and impeachable chief executive for an English monarch who was legally unreachable because he was presumed incapable of wrongdoing. As a result, the Wilkensian lessons of popular sovereignty and electoral pardon did not develop in the context of the executive branch, and it is sensible that the Framers would settle on a different default rule (impeachment and disqualification) for the elected President than the rule (expulsion and re-election) applied traditionally to the people’s legislators. Put another way, disqualifying an elected President for official wrongdoing couldn’t encroach on the people’s traditional right to pardon and re-elect a chief executive, because no such right existed in English history.

Cassady, 32 Quinnipiac L. Rev. at 276 n. 332.

Frankly, this explanation strikes me as rather circular. As indicated in my last post, however, I don’t find the “electoral pardon” principle all that persuasive in explaining the Disqualification Clause in the first place, and it seems to me that there is a stronger policy reason for disqualifying candidates for the presidency than for other offices, elected or appointed. But, as I am sure Professor Tillman would be quick to remind me, my policy intuitions are not constitutional law.

The precise question is whether the president holds an “Office of honor, Trust or Profit under the United States” as that phrase is used in the Disqualification Clause. Cassady’s article sheds some light on the origin of this language. He provides examples in English statutory law that referred to some variant of an “Office of honor, Trust or Profit,” where it almost always referred to offices conferred by the Crown. Id. at 278-80. As such, the offices were often identified as being “under” the Crown.

Early state constitutions also used terminology like “offices of honor, trust or profit” to refer generally to positions in the executive and judicial branches. See id. at 280-81 (“The overwhelming majority of examples from state constitutions distinguishes sharply between those who hold offices of honor, trust, or profit and members of the legislature”) & n. 355. Sometimes these offices were identified as being “under this state,” “under this commonwealth,” or “under the government.” See, e.g., Ga. Const. of 1777, art. XI (“No person bearing any post of profit under this State . . . shall be elected as a representative.”).

Continue reading “Is the Presidency an Office “Under” the United States?”

House of Cads: Legislators and the Disqualification Clause

So I have now read Benjamin Cassady’s “You’ve Got Your Crook, I’ve Got Mine,” 32 Quinnipiac L. Rev. 209 (2014), to which Professor Tillman’s article responds. Cassady makes the case that the Constitution’s Impeachment and Disqualification Clauses do not apply to federal legislators. Much of the article is devoted to explaining why this result makes sense as a policy matter: basically that a crooked legislator is not as dangerous as a crooked judge or executive official and that voters should be able to “pardon” a crooked legislator by returning her to office with full knowledge of her misdeeds.

Cassady discusses at some length the famous case of John Wilkes, a radical and controversial member of Parliament who was expelled multiple times by the House of Commons for libelous comments but continually re-elected by his constituents. He argues that the fall-out from this case ultimately led to the recognition of an “electoral pardon” principle in the United States, pursuant to which it is improper for a legislator to be expelled (or not seated) based on conduct known to her constituents at the time they elect her.

I think Cassady is correct in his interpretation of the Impeachment and Disqualification Clauses. He may or may not be right that the “electoral pardon” principle explains why the Constitution treats legislators differently in this regard than executive or judicial officers. I am not sure myself that this distinction, particularly with regard to disqualification, makes that much sense from a policy standpoint. One might argue that there is no more reason to disqualify an impeached official from a future appointment to an executive or judicial office than from a future election to a congressional seat. After all, if the “voters” (who, in the case of senators, would originally have been the members of the state legislature) can “pardon” a candidate for a congressional seat, why shouldn’t the president and the Senate be permitted to “pardon” a nominee to an executive or judicial office?

Continue reading “House of Cads: Legislators and the Disqualification Clause”

Tillman on the Disqualification Clause

Professor Seth Barrett Tillman has posted this draft article on the Disqualification Clause of Article I, § 3, cl. 7, which provides that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Long story short, Professor Tillman argues that an “Office of honor, Trust or Profit under the United States” extends exclusively to statutory or appointed offices and excludes elected positions such as President, Vice-President, Senator and Representative. Thus, under his theory if a president, vice-president or a civil officer of the United States is impeached, removed from office and disqualified, that individual remains eligible to serve in any of the aforementioned elected positions. Tillman cites a number of pieces of evidence which he believes support this conclusion (some of which we have discussed in prior posts), and he argues that it is consistent with the “democracy canon” that, all other things being equal, the people should be entitled to vote for whomever they please to represent them.

This particular issue may be of limited practical importance, unless you are planning to work on the Porteous 2016 campaign, but it is of some interest with respect to the methodology of constitutional interpretation as well as other constitutional provisions that apply to “officers of” or “offices under” the United States. Related discussions may be found here (“May the President Accept a Foreign Title of Nobility?”), here (“Tillman’s Puzzles for Amar (or Who You Callin ‘Atextual’?)”) and here (“Six Answers for Six Puzzles”).