« Cass Sunstein on the Constitutionality of Affirmative Action
Mike Rappaport
| Main | Michael Greve on the Health Care Case and the Meaning of "Proper"
Michael Ramsey


An Open Letter to Defenders of the Unitary Executive
Seth Barrett Tillman

[Note: the following guest post is from Professor Seth Barrett Tillman, Lecturer of Law, Nat’l Univ. of Ireland Maynooth.  Welcome Professor Tillman.  --ed.]

An Open Letter from Seth Barrett Tillman to Professor Saikrishna B. Prakash (and other defenders of the unitary executive theory)

Dear Professor Prakash et al.,

Back in 2008, you and I had a short exchange in the Duke Journal of Constitutional Law & Public Policy. You may remember that in that exchange I argued that the Constitution’s varying usage in regard to office and officer was meaningful. Specifically, I argued that the Incompatibility Clause, using “Office . . . under the United States” language, did not reach the presidency (and vice-presidency), and as a result, that clause did not bar a sitting Senator (e.g., Clinton, McCain, or Obama) from simultaneously holding the presidency. In other words, the Incompatibility Clause bars Senators and Representatives from simultaneously holding appointed office (in any of the three branches), but it is not a bar to other elective positions (e.g., the vice presidency and the presidency).

In 2008, you did not agree with my theory. 

Today, in 2012, we face a nearly identical question . . . should Representative Ryan win re-election to his House seat and be elected to the vice presidency, can he hold both offices? My position is “yes, he can (at least as far as the Incompatibility Clause is concerned).” I am wondering if your current position is the same as it was in 2008: i.e., the Incompatibility Clause applies to the presidency (and, by implication, to the vice presidency).

Part of the reason I ask is that I now have some additional evidence relating to the events of 1787-1797 – evidence which I did not put forward in our 2008 debate. And although you can still maintain that you are correct about the Incompatibility Clause, if you do, I think the consequence of your maintaining your 2008 position is that you will have to give up on the unitary executive theory (about which you have published from time-to-time). It seems to me your two positions contradict one another.

Let me explain. 

In 2008, I noted that President Washington accepted a gift (the key to the Bastille) from LaFayette (then a French government official). The Foreign Emoluments Clause prohibits anyone holding an “Office . . . under the United States” from accepting, absent congressional consent, a gift from a foreign government. Washington accepted the key; he never asked for congressional consent; he never received congressional consent. You responded that LaFayette was (practically, even if not technically or legally) Washington’s “adopted son” and so the gift was not from a foreign state, but was a personal gift.

But it turns out Washington received other such gifts. For example, President Washington accepted a framed full-length portrait of Louis XVI from the French ambassador. The ambassador was not Washington’s “adopted son.” Here too, Washington never asked for or received congressional consent to keep the gift. My position is that the presidency is not an “Office . . . under the United States” (as used in the Foreign Emoluments Clause and the Incompatibility Clause) and so Washington was constitutionally permitted to keep the gift, even absent congressional consent.

Surely, you are not going to argue that the French ambassador was (like LaFayette) Washington’s “adopted son,” right? Surely, you are not going to argue that this too was a personal gift, as opposed to a gift from a foreign state, are you?

I suppose you could argue that either: (1) Washington made an inadvertent mistake; or (2) Washington was knowingly violating the Constitution. But, if you embrace either of these two possibilities, then is not your version of the unitary executive theory dead? Your version of the unitary executive theory depends on the precedents established by George Washington and his administration. It seesm to me that you cannot rely on those precedents if Washington was unaware of the Foreign Emoluments Clause or was unwilling to abide by its express command.

The same is true for Alexander Hamilton. In 1792, during Washington’s administration, Secretary of the Treasury Hamilton was ordered by the Senate 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 and Vice President. But, it did include appointed or statutory officers in each of the three Branches. For example, Hamilton included non-elected Legislative Branch officials: e.g., the Secretary of the Senate and his staff, and the Clerk of the House and his staff. For Hamilton, on this occasion, “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.

What do you think of this Washington-era documentary record? Do you think Hamilton (like Washington above) just forgot (!) to include the President and Vice President? Why does your position require that so many forgot so much so frequently? Is not the better view that Hamilton thought “Office . . . under the United States” did not reach the presidency and vice presidency?

I suppose you could maintain that Hamilton erred. But how could Hamilton have erred in this fashion? In 2008, you argued that it was plain, clear, obvious, etc., etc. that the presidency was an “Office . . . under the United States” (and, so, clearly subject to the Incompatibility Clause). But, if you are correct, if it were obvious circa 1789 that the presidency was an “Office . . . under the United States,” then Hamilton’s error is very troubling. And if it is troubling, then your reliance on the Hamilton and Washington-era precedents is misplaced.

In other words, the unitary executive hypothesis (at least, that variant developed by you, and Steven Calabresi, and Akhil Amar) relies on Hamilton and on other Washington-era precedents. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 642 n.450 (1994) (“Moreover, Washington was acutely aware that the precedents established in the beginning would influence posterity. Accordingly, [President Washington] ‘devoutly wished’ that ‘these [Executive Branch] precedents may be fixed on true principles.’” (quoting Washington to Madison correspondence from May 5, 1789)); Saikrishna Prakash & Steven D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72, 120 n.185 (2006) (favoring Hamilton’s position on removal which he announced during the Washington administration over Hamilton’s position during ratification); see also, e.g., Akhil Reed Amar, America’s Unwritten Constitution Chapter 8 Following Washington’s Lead: America’s “Georgian” Constitution 319-27 (2012) (expressly relying on Washington-era precedents in defense of the unitary executive theory).

Professor Prakash, I think you (and the others who have defended the unitary executive theory based on the Washington-era precedents) really need my view of the past. Because if you reject it, then, it seems to me, the unitary executive hypothesis is dead.

(Cross-posted at Prawfsblog).

MICHAEL RAMSEY adds:  Well, as a defender of the unitary executive, along with Professor Prakash, I will have to give this some thought.  Although, my defense of the unitary executive is not based only on Washington-era precedents.