A Reply to Professor Ramsey on the Unitary Executive
Seth Barrett Tillman
Professor Ramsey wrote: “This textual reading [of the Executive Vesting Clause] is confirmed by the practice of the Washington administration, but it does not depend on the practice of the Washington administration.” Precisely. The unitary executive hypothesis is a plausible reading of the Constitution. But, other readings may be comparably plausible. The hypothesis is interesting precisely because it has been (purportedly) “confirmed” by the practices of Washington and his administration. Of course, confirmation only works here if Washington was diligently aiming to comply with the Constitution. That is why Professors Amar, Calabresi, and Prakash quote Washington’s letter to Madison, which states: “As the first of every thing, in our situation will serve to establish a Precedent, it is devoutly wished on my part that these precedents may be fixed on true principles.” (emphasis in the original)
But Professor Ramsey also wrote that the “most obvious meaning” of the Foreign Emoluments Clause’s “Office . . . under the United States” language encompasses the President. The problem for him is that Washington kept several foreign presents and he never asked for or received congressional consent. If he is correct about the Foreign Emoluments Clause’s meaning, then it would appear that: (i) Washington was unaware of the “most obvious meaning” of the Constitution; or (ii) he was indifferent to his duty; or (iii) he actively defied the Constitution. Any of these three possibilities preclude using Washington’s conduct to confirm the Constitution’s original public meaning.
Again, if Professor Ramsey is correct about the Constitution’s office-related language, then Washington was wrong, and his conduct cannot confirm the unitary executive theory. All Professor Ramsey will have is a unitary executive hypothesis. That is one reason why he might want to reconsider his position in regard to the original public meaning of the Constitution’s office-related language. On the other hand, if Professor Ramsey is wrong about the original public meaning of the Constitution’s office-related language, and Washington and Hamilton were correct, then Washington’s conduct can confirm the unitary executive theory. The unitary executive theory will be home and dry.
As to Professor Ramsey's textual point – that the “most obvious meaning” of “Office under the United States” encompasses the President (and, apparently, the Vice President) – it needs support; it needs evidence. Originalist inquiry is supposed to be evidence-driven. As it stands, his position seems to be no more than an intuition based on modern usage. He does not point to any evidence that his modern understanding of such language is coextensive with how it would have been understood circa 1789. So, here is some counter-evidence and arguments to consider:
(1) Eighteenth-century British statutes—predating the Constitution—made use of the phrase office under the Crown. Office under the United States and Office under the Crown seem similar, and the latter did not extend to members of Parliament or to other elected positions. It only extended to positions subject to supervision or direction by higher authority. See Anne Twomey, The Constitution of New South Wales 438 (2004) (“As it is an elective office, and not generally subject to the direction or supervision of the government, one would assume that it is not an office held ‘under the Crown’.”). The President and Vice President are not subject to supervision (even by one another).
(2) State ex rel. Ragsdale v. Walker, 33 S.W. 813, 814 (Mo. 1896) (Macfarlane, J.) (“An office under the state must be one created by the laws of the state. The incumbent must be governed by state laws, and must exercise his powers and perform his duties in obedience to a statute.” (emphasis added)). In other words, a constitutionally-created statewide elected position is not an “office under the state”. Id. For example, it would appear that a governor is not an “officer under the state.” And it might follow that the president is not an “Officer . . . under the United States.”
(3) Since 1789, Congress has continuously passed statutes extending statutory disqualifications to those convicted of specified crimes. Disqualification precludes the convict from holding any “Office . . . under the United States.” This language cannot extend to the presidency, the vice presidency, or other constitutionally-created elective offices. See The Federalist No. 60 (Alexander Hamilton); Powell v. McCormack. Under Professor Ramsey's view, these statutes are constitutionally suspect; under my view these statutes are constitutionally sound: disqualification extends only to offices created by Congress, not to those positions whose qualifications are already set in the Constitution’s text. Why not apply the avoidance canon? Whose view – Professor Ramsey's or mine – makes better sense of the past and of congressional practice contemporaneous with ratification?
(4) Professor Ramsey and other modern commentators (Professors Amar, Calabresi, and Prakash) think it clear that the President is an “Office . . . under the United States.” However, not all prior commentators agree with that position. See, e.g., David A. McKnight, The Electoral System of the United States 346 (Philadelphia, J.B. Lippincott & Co. 1878) (“It is obvious that . . . the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.’” (emphasis added)). Compare, e.g., Congressional Record: Containing the Proceedings of the Senate Sitting for the Trial of William W. Belknap, Late Secretary of War 130 (1876) (Senator George Sewell Boutwell: “[F]or according to the Constitution, as well as upon the judgment of eminent commentators, the President and Vice-President are not civil officers”), id. at 145 (Senator Newton Booth: “[T]he President is not an officer of the United States. As was tersely said by the Senator from Massachusetts [i.e., Mr. Boutwell], ‘He is part of the Government.’” (citing Story’s Commentaries)), with Ramsey (“[I]t is natural to think, since the ‘Office’ [of President] is within the national government of the United States, that it is an ‘Office under the United States.’”).
I do not suggest that McKnight and these nineteenth century senators are in better touch with the Constitution’s eighteenth century usage than Professor Ramsey (and his twenty-first century colleagues). Rather, my point is that he does not support his position – asserting that the “most obvious meaning” of “Office under the United States” encompasses the presidency – with anything akin to evidence. Those within the modern consensus regarding the Constitution’s varying office-related language defend their position (as he does) largely by stating that their view is obvious; but, they rarely consider counter-evidence. Moreover, reasonable people can and have disagreed about the scope of the Constitution’s varying office-related language. See, e.g., Oliver P. Field, The Vice-Presidency of the United States, 56 Am. L. Rev. 365, 382 (1922) (“Whether the president and vice-president are officers of the United States is a subject on which conflicting opinions are held. It is not possible to deal here at length with . . . that question . . . .” (footnote omitted)).
My view of the text is confirmed by: Washington’s conduct; Hamilton’s letter; British statutory drafting traditions; state case law; congressional practice; McKnight’s treatise; Story’s Commentaries, and Senators Boutwell & Booth. I think I am in pretty good company.