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39 posts from October 2020


Philip Hamburger: Delegating or Divesting?
Michael Ramsey

Recently published, in the Northwestern University Law Review Online, Philip Hamburger (Columbia): Delegating or Divesting? (115 Nw. U. L. Rev. Online 88 (2020)) (responding to Delegation at the Founding by Julian Davis Mortenson and Nicholas Bagley).  Here is the abstract: 

A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history—most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.

A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine—arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most central historical claims are mistaken. For example, when quoting key eighteenth century authors, the article makes errors of omission and commission—leaving out passages that contradict its position and misunderstanding the passages it recites. The initial goal of this Essay is therefore to explain the evidentiary mistakes in the attack on nondelegation.

This Essay’s broader aim, however, is conceptual: it points out two basic principles that have thus far received insufficient attention from both the defenders and opponents of administrative power.

First, the delegation problem can be understood more specifically as a question of vesting. To be sure, the nondelegation doctrine should be put aside—not on the grounds offered by Professors Mortenson and Bagley, but because the Constitution speaks instead in stronger terms about vesting. Thus, what are generically depicted as questions of delegation can be understood more specifically in terms of vesting and divesting. It thereby becomes apparent that Congress cannot vest in others, or divest itself of, any power that the Constitution vests in it.

Second, it is necessary to draw attention to a much-neglected idea of executive power. Recent scholarship has debated widely different conceptions of executive power—Mortenson’s view, now echoed by Bagley, being that executive power is an “empty vessel.” But all such scholarship tends to ignore another conception of executive power: that it involves the nation’s action, strength, or force. This understanding of executive power has foundations in eighteenth-century thought—as revealed even by the authors quoted by Mortenson and Bagley. Indeed, it is the conception asserted by Federalist Number 78 and evident in the Constitution itself.

A narrow historical inquiry thus points to broad conceptual lessons. Both delegation and executive power need to be reconsidered on the basis of the Constitution and its history.

(Via Jonathan Adler at Volokh Conspiracy, who has a helpful list of recent nondelegation scholarship).


John McGinnis and Mike Rappaport on Trump's Judges Will Bring America Together
Mike Rappaport

Recently, John McGinnis and I published an op-ed piece in the Wall Street Journal entitled "Trump’s Judges Will Bring America Together."  (The title was, of course, supplied by the Journal.)  The piece was published after Ruth Bader Ginsburg's death, but before Amy Coney Barrett was nominated.  Unfortunately, I forgot to post about it, but the points still stand.  Here is an excerpt: 

The most important result for the judiciary of confirming a third Trump Supreme Court nominee and re-electing Mr. Trump would not be any specific set of decisions but the maintenance and strengthening of a culture of originalism. That would not only improve America’s legal system but help bridge the country’s broader political divisions.

Mr. Trump’s judges are self-conscious originalists and textualists, and they will gradually change the jurisprudential weather.

Lawyers want to win cases. An originalist culture means more briefs will canvass the Constitution’s original meaning and dig into the legal and historical background of constitutional provisions. This kind of briefing will happen not only at the Supreme Court, but also in appropriate cases in the lower courts.

Federal courts entrenched in originalism over time would move even left-liberal scholars to investigate original meaning in the hope of finding something to persuade judges. That would be a welcome change. Originalism is greatly enriched when professors with different ideological perspectives practice it. Legal practice as a whole benefits from people of diverse ideologies contributing knowledge of original meanings.

We then conclude with a discussion of how originalism would revive the constitutional amendment process, which would help address the polarization that afflicts us: 

Originalist culture can also revive the possibility of constitutional amendments. When the legal culture permits justices to update the Constitution to create new rights or principles, like the right to abortion, social movements naturally focus on getting their preferred candidates appointed to the high court. But if originalist decision-making is sustained for a generation, activists would eventually turn to amending the Constitution as a way of advancing their causes. That process has previously enacted great improvements to America’s fundamental charter, including the elimination of slavery, the establishment of equal rights without regard to race, the prohibition of racial discrimination in voting, and the extension of the franchise to women.

Because constitutional amendments require broad consensus, advancing one prompts activists and legislators to engage in a long period of debate and persuasion. The pursuit of such broad agreement reduces politicians’ incentive to treat each other as enemies. Constitutional politics is a politics of respect and principle, which could replace today’s bare-knuckled combat, in which warring interest groups are mobilized to construct narrow majorities.


Balkin on Court Packing and Court Regularizing
Mike Rappaport

Jack Balkin has an interesting post advocating a change in the structure of the Supreme Court that he believes could be accomplished by statute.  Under the proposal, justices serve in full capacity for 18 year terms, to be replaced every two years.  After the 18 years, they serve in an extremely limited capacity.  The proposal would apply to existing justices.

Here is his description:

The President appoints a new Justice in every odd-numbered year. Congress creates two en banc courts: The first is an en banc court for deciding cases under the Court's original jurisdiction, consisting of all the active Justices. The second is an en banc court for deciding cases under the Court's appellate jurisdiction, consisting of the nine Justices most junior in service.

The more senior Justices retain life tenure and their salaries, and the Chief Justice remains the administrative head of the Judicial Branch of government. The more senior Justices remain on the Court to hear cases . . . involving the Court's original jurisdiction, to pinch-hit when a junior Justice is recused from the appellate en banc panel, to consider the mountain of petitions for certiorari the Court receives every year, and to hear cases on the federal courts of appeals. The precedent for requiring Justices to "ride circuit"-- to hear cases in the lower federal courts-- goes back to the country's founding. The number of Justices deciding Supreme Court appeals always remains nine, but the composition of the appellate en banc panel changes every two years like clockwork.

What does this mean in practice?

Suppose we begin the new system in 2023. The most senior Justice, Clarence Thomas, would no longer regularly be on the appellate en banc panel as soon as the Senate confirmed the first new appointment. Two years later, in 2025, it would be Justice Stephen Breyer's turn, followed by Chief Justice John Roberts (who would remain administrative head of the federal judiciary), Justice Samuel Alito, Justice Sonia Sototmayor, Justice Elena Kagan, and so on.

In other words, except for very limited exceptions, the most senior justice would be required to stop deciding Supreme Court cases every two years.  In effect, the justices would now be serving 18 year terms.

According to Balkin:

because the proposal simply creates two different en banc panels for original and appellate jurisdiction, and allocates duties of circuit riding, it is completely consistent with the commissions of existing Supreme Court Justices.

My initial reaction to this proposal was that it is obviously unconstitutional.  After all, the Constitution provides that the justices serve during good behavior and that has been traditionally understood to preclude a position based on a term of years.  But Balkin would respond that the justices continue to serve on the Supreme Court in their position of justice.  Thus, Clarence Thomas would continue to be a justice, even though he would no longer be on the appellate en banc panel in 2023.

Balkin’s argument is extremely interesting, even though I disagree with it.  There are so many aspects to it that require discussion and examination.  I wish Balkin had addressed some of them, but his post is pretty short.  Here, I will just discuss one aspect of the argument.

I question whether Justice Thomas would still be a full Supreme Court justice after he is no longer allowed to decide appellate cases.  Instead, he would be a second class justice and would have effectively been forced to retire in contravention of the good behavior provision.

Balkin might respond, as he states in his post, that the Constitution allows the Congress authority as to the appellate jurisdiction of the Supreme Court to make “exceptions” and “regulations.”  And therefore Congress can adopt the regulation that would prevent Thomas from deciding appellate cases except in rare circumstances.  But while Congress can regulate the Supreme Court’s appellate jurisdiction, it cannot use that power to deprive Supreme Court justices of their offices – in whole or in part. 

It is true that the Constitution does not forbid Congress from changing the appellate jurisdiction of the Supreme Court.  Thus, Congress can take cases away from the Court and or add to the Court’s appellate jurisdiction – without impinging on the justices’ offices.  But just because some such changes are constitutional does not mean that all changes are constitutional. 

While this area would benefit from significant research, my tentative view is that the Congress cannot draw distinctions between the different associate justices on the Supreme Court.  In other words, Congress cannot forbid Justice Thomas from sitting on appellate cases but permit Justice Kagan to do so.  The position of associate justice must be the same for both.  Balkin’s proposal does exactly that and therefore would be unconstitutional under this criterion.

This interpretation is consistent with the text – the Constitution speaks of judges of the Supreme Court, suggesting that they all must have same the powers.  It does refer separately to the position of Chief Justice, which suggests that the Chief may have additional administrative responsibilities. 

This interpretation also accords with structure, purpose, and history.  Under Balkin’s view, Congress could exercise tremendous power over the justices.  First, Congress could require that the existing justices stop deciding appellate cases, not merely after 18 years, but after, say 5 years (or fewer), once their replacement is confirmed.  And it could allow replacements to be confirmed every six months.  That would allow a new President and Congress to replace 8 of the 9 justices in the President’s first term.

Second, Congress could also draw distinctions between the justices.  Congress could set up a rule that requires certain justices – say justices who are more than a certain age or whose last names begin with certain letters or whatever – to stop deciding appellate cases.  The independence of the Supreme Court would be at significant risk.

Finally, this interpretation accords with the history in that the associate justices appear to have enjoyed the same powers throughout the Court’s history.

In the end, it would be useful to do more research before evaluating this proposal.  For example, it would be helpful to know whether the equality norm that I have mentioned uniformly applied to judges on courts in the Anglo-American legal system.  (Alas, Balkin has not addressed these issues and I believe that the burden should be on the person proposing this new, quite unusual law.)  But based on my first impression, I seriously doubt the constitutionality of this proposal.  

Mike Rappaport's Views Discussed at Judge Barrett's Senate Confirmation Hearing (and I Disagree)
Michael Ramsey

From CBS News: USD law professor’s view of originalism debated at Supreme Court confirmation hearing.

The writings of a University of San Diego law professor played a role in Wednesday’s Supreme Court confirmation hearing.

USD Professor Mike Rappaport once wrote an article arguing Social Security and Medicare were unconstitutional. Senator Dianne Feinstein wanted to know if the Supreme Court nominee, Amy Coney Barrett, felt the same way.

“Some have argued that the Medicare program is unconstitutional,” Senator Feinstein began.

Professor Rappaport, like Barrett, considers himself a constitutional originalist. He wrote the 2015 article in "Law & Liberty" entitled, "The Unconstitutionality of Social Security and Medicare."

“Professor Mike Rappaport of the University of San Diego Law, wrote this, "...it is worth remembering that these programs would never have taken their pernicious form if the Constitution's original meaning had been followed in the first place,” said Feinstein.


“Do you agree with originalists who say that the Medicare program is unconstitutional?” asked Feinstein.

“I can't answer that question in the abstract because, as we've talked about, the 'no hints, no forecast, no previews' rule. I also don't know what the arguments would be,” responded Barrett. ...

Congratulations to my colleague and co-blogger!  As we say at USD law, that's "high impact scholarship." 

Also, I think he's wrong. He argues:

These programs [Social Security and Medicare] are enacted under Congress’s so-called spending power.  Under this power, Congress is said to have the power to spend for the general welfare.

But I don’t believe there is a spending power.  The constitutional provision states that “Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.”  In my view, this Clause merely confers on Congress the power to tax.  The money is then to be used to further the other enumerated powers, which are briefly characterized as “for the common defense and general welfare.”  If this reading, which was held by James Madison is correct, Social Security and Medicare would be unconstitutional.  (I should note that some originalists disagree with this reading of the Constitution, but I think they are mistaken. For my defense of this reading, see here and here.)

I'm one of those originalists (or maybe "textualists") who disagrees.  Here's the text again:

Congress shall have power to lay and collect taxes ... to  ... provide for the ... general welfare of the United States.

This sounds to me like an authorization to spend tax revenue on the general welfare, which in turn sounds like a very broad and open-ended category of objectives.  Professor Rappaport says that the money can only be used to "further the other enumerated powers, which are briefly characterized as 'for the common defense and general welfare.""  But if the Framers wanted to limit federal spending to the other enumerated powers, this is an odd and uncertain way to do it.  It would have been much better (and safer) to say: "Congress shall have power to lay and collect taxes ... to  ... bring into execution the powers granted to it in this Constitution."

"General welfare" is not at all an obvious synonym for "enumerated powers."  Rather, it seems to mean, less specifically, things in the national public interest, which surely include the enumerated powers but could be much broader.  For example, suppose one thinks that creating a national university (something debated at the founding) is not within Congress' enumerated powers.  (I think it probably isn't).  One could still easily conclude that a national university promotes the general welfare, in the ordinary sense of that phrase (which seems to mean something like bringing greater prosperity to the people as a whole).

I know that Madison and other framers are against me here.  But, after its adoption, they had an interest in reading the spending clause narrowly.  And when the text seems clear I'll take it over Madison.

FURTHER THOUGHTS:  Also I think Judge Barrett fumbled the response.  This isn't an obscure issue.  The Supreme Court discussed the competing founding-era views of the spending clause in United States v. Butler, 297 U.S. 1 (1936) and opted for the broader Hamiltonian view over the narrower Madison/Rappaport view.  The Court then upheld the 1935 Social Security Act the next year in Steward Machine Co. v. Davis, 301 U.S 548 (1937) and Helvering v. Davis, 301 U.S. 619 (1937).  The constitutionality of Medicare seems to follow easily from the constitutionality of Social Security. I'm not aware of any serious judicial challenges to these conclusions since the New Deal, and the reliance and institutional interests seem paramount and more than adequate to sustain the outcomes under pretty much any theory of stare decisis (as Professor Rappaport himself says in the linked post).


Nikolas Bowie: The Constitutional Right of Self-Government
Michael Ramsey

Nikolas Bowie (Harvard Law School) has posted The Constitutional Right of Self-Government (130 Yale L.J., forthcoming) (88 pages) on SSRN.  Here is the abstract:

The Assembly Clause is the ugly duckling of the First Amendment. Brooding in the shadow of the heralded Free Speech Clause and the venerated Religion Clauses, the Assembly Clause has been described even by its advocates as “forgotten,” a “historical footnote in American political theory and law.” The clause protects “the right of the people peaceably to assemble”—a phrase the Supreme Court has interpreted only once over the past fifty years despite issuing hundreds of opinions interpreting its First Amendment siblings. From the moment it was included in the proposed federal bill of rights, observers have questioned who would bother turning to the Assembly Clause for assistance given the First Amendment’s other protections of free expression.

This paper offers a surprising answer. After describing the historical context in which the “right to assemble” was first expressed, it argues that the right could be interpreted not as a narrow right of self-expression but rather as a broad right of self-government.

In the decade preceding the American Revolution, advocates of “the right to assemble” used the phrase in response to attempts by royal and parliamentary officials to subordinate their town meetings and colonial legislatures—or, in the language of the day, to subordinate their local and general “assemblies.” This subordination came in various forms: Parliament passed laws disempowering New York’s general assembly until it enacted certain legislation; Parliament censured and then banned town meetings in Massachusetts from debating international affairs; and governors up and down the continent dissolved, changed the location of, and otherwise coerced general and local assemblies into repealing legislation they regarded as seditious. In response, town officials and colonial representatives complained that all people have an inherent right to participate in assembled governments, which in turn have the power to consult their constituents and seek a redress of their grievances—whether by enacting laws with their constituents’ consent or by petitioning other governments for their assistance.

The historical context of the assembly clause’s origins suggest that the clause has been interpreted far too narrowly. Once the clause is understood as protecting not only the informal expressions of conventions, marches, and gatherings but also a right to meaningfully participate in effective government, the state and federal assembly clauses look like an important, “forgotten” limit on disenfranchisement and local disempowerment.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!"


Keith Whittington (and Others) on Judge Barrett on Originalism and Precedent
Michael Ramsey

At Volokh Conspiracy, Keith Whittington: Amy Coney Barrett Is No Extremist on Stare Decisis.  From the beginning:

At the New York Times, I have a new piece about Professor Amy Coney Barrett's writings on precedent and stare decisis. This was a significant component of her research agenda as a scholar, and it has come under new scrutiny now that she might be able to put some of her ideas into practice as a justice on the U.S. Supreme Court.

Although critics have decried her as an extremist on stare decisis, I am more impressed by the extent to which her scholarship was designed to push originalists toward a more moderate and more mainstream position on the question of the authority of erroneous precedents. She may not preserve your favorite precedents as a justice, but that does not mean that she is a radical in regards to stare decisis. For better or for worse, she is no Clarence Thomas on the virtues of casting misguided precedents aside.

I agree, particularly from my memory of her talk at the 2016 Notre Dame symposium on Justice Scalia's jurisprudence (which became this article): her main goal, as I recall, was to defend Scalia's view of precedent against more radical originalist approaches.

RELATED:  Also at Volokh Conspiracy, Dale Carpenter: Two Questions for Judge Barrett About Stare Decisis.  Here's the first question:

Your version of the weak presumption of stare decisis in constitutional law cases seems to go like this: If a justice is only weakly convinced that a precedent is wrong (say, 51% convinced) then even a small amount of reliance on the precedent (or other institutional interests) might cause her to stand by the erroneous decision.

But if a justice is completely convinced that a precedent is wrong  (say, 100%), then the precedent should be overruled no matter how weighty the reliance or institutional interests.

(For now, let's leave aside the status of so-called "super-precedents" like Marbury v. MadisonBrown v. Board of Education, the Legal Tender Cases, and so on, for which there is broad executive, legislative, judicial, and popular support.)

Is this a fair characterization of your view?

I think her answer would be "no" -- very weighty reliance or institutional interests can overcome even certainty that a decision is wrong.  I also think that was Justice Scalia's view.  I'm not sure, though, to what extent that's incorporated into Professor Carpenter's parenthetical on superprecedents.  Isn't a "superprecedent" just one with very weighty reliance or institutional interests?

(Aside: I think there are few if any originalists who think Marbury v. MadisonBrown v. Board of Education, and the Legal Tender Cases are examples of cases that are certainly wrong on originalist grounds.)


Eli Nachmany on To Delegate Or Not To Delegate: Celebrating A Scholarly Exchange About Originalism And The Nondelegation Doctrine
Mike Rappaport

At Jotwell, Eli Nachmany writes: 

A riveting originalist debate over the nondelegation doctrine is currently playing out in the legal academy. The nondelegation principle suggests, in part, that “Congress cannot delegate its legislative power to the executive.” In their recent article Delegation at the Founding, Professors Julian Mortenson and Nicholas Bagley argue that the framers originally understood the Constitution to permit such delegation. In a forthcoming essay in the Yale Law Journal, aptly titled Nondelegation at the Founding, Professor Ilan Wurman takes the opposite position.

Nachmany discusses both sides of the debate: 

To support their originalist pro-delegation claim, Professors Mortenson and Bagley cite numerous open-ended statutes passed after the ratification of the Constitution, and they discuss hundreds of years of pre-ratification history as well. They also offer other evidence to bolster their contention. Professor Wurman—the author of a book on originalism—counters their approach in part with a methodological critique, illustrating that originalism is not merely an exercise in throwing everything against the wall and hoping something sticks.

Professor Wurman frowns upon Professors Mortenson and Bagley’s “draw[ing of] one clean line between 1539, the British practices of the seventeenth century, the American practices under the states and the confederation government in the third quarter of the eighteenth century, and the constitutional moment of 1787–88.” He also lodges a more substantive set of specific critiques. He addresses all of the positive evidence that Professors Mortenson and Bagley cite, while reframing these examples as reflective of the existence of a bar on delegation at the founding. Professor Wurman not only provides needed context for a number of Professors Mortenson and Bagley’s examples, but also turns the tables on the professors. Professor Wurman makes the point that Delegation at the Founding “discount[s]” both “significant implicit evidence” and “overwhelming affirmative and explicit evidence of a widespread [founding-era] belief in a nondelegation doctrine.” Professor Wurman finds that, in the end, Professors Mortenson and Bagley hang their hats on a “paucity of affirmative and explicit evidence to the contrary.”

Nachmany also focuses on how the debate shows the importance of originalism: 

What is so remarkable about the Mortenson-Bagley/Wurman debate is the turf on which it is carried out. In both articles, the authors do a fine job of keeping the focus on distilling the original public meaning of nondelegation. Certainly, citizens can disagree about originalism’s results, but as Professor Wurman points out, Professors Mortenson and Bagley’s paper refreshingly “reflects a candid recognition that originalist work is possible.” In other words, the productive and illuminating back-and-forth here is a promising sign of things to come for those who are simply interested in the prospect of finding the correct answer as a matter of originalism when engaging in constitutional interpretation. 


William Eskridge et al.: Dynamic Words, Novel Applications, and Original Public Meaning
Michael Ramsey

William N. Eskridge (Yale Law School), Brian G. Slocum (University of the Pacific - McGeorge School of Law) and Stefan Gries (UC Santa Barbara - Department of Linguistics) have posted The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning (Michigan Law Review, Vol. 119, forthcoming) (80 pages) on SSRN.  Here is the abstract:

The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters. Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, Georgia, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sex and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the Court failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over time. We argue that long-standing statutes are inherently dynamic because they inevitably evolve ‘beyond’ the original legislative expectations, and we offer a new theory and framework for how courts can manage societal and linguistic evolution. The framework depends in part on courts defining ‘meaning’ properly so that statutory coverage is allowed to naturally evolve over time due to changes in society, even if the meaning of the statutory language is held constant (via originalism).

Originalism in statutory and constitutional interpretation typically focuses on the language of the text itself and whether it has evolved over time (what we term linguistic dynamism), but courts should also recognize that the features of the objects of interpretation may also evolve over time (what we term societal dynamism). Linguistic dynamism may implicate originalism but societal dynamism should not, as originalists have assumed in other contexts (such as Second Amendment jurisprudence). Putting our framework into action, we demonstrate, through the application of corpus analysis and linguistic theory, that sex in 1964 was not limited to “biological distinctions between male and female,” as all of the opinions in Bostock assumed, and gender and sexual orientation were essentially non-words. Sex thus had a broader meaning than it does today, where terms like gender and sexual orientation (and other terms like sexuality) denote concepts that once could be referred to as sex (on its own and in compounds). In turn, ‘gays and lesbians’ and transgender people became new social groups that did not exist in 1964. By limiting the meaning of sex to “biological distinctions” and failing to recognize that societal dynamism can change statutory coverage, the Court missed the opportunity to explicitly affirm that the societal evolution of gays and lesbians and transgender people has legal significance.


John McGinnis on the Vice President's Tie-breaking Vote
Michael Ramsey

At Law & Liberty, John McGinnis: Laurence Tribe Gets the VP’s Vote Wrong.  From the introduction:

Those opposed to putting Amy Barrett on the Supreme Court are making legal arguments to thwart her confirmation that are so unsound that they show the need for more justices like her. Exhibit A is an essay by Harvard Law Professor Laurence Tribe, arguing that if the Senate is tied 50-50, Vice President Pence cannot as a matter of constitutional law cast the decisive vote. The nomination is so closely contested that if his view were accurate, it could be the difference between confirmation and rejection.

Tribe is the most famous constitutional law professor of his generation, educating thousands of students at Harvard Law School on how to interpret the Constitution. But if this article is an indication of what he has taught, a constitution construed by his acolytes will go down the memory hole, to be replaced by a fundamental law that is shaped to meet the demands of the left-liberal moment. The influence of law professors like him on generations of law students shows why it is all the more necessary to confirm justices to the Supreme Court who will help create a legal culture in which the Constitution is read according to its text as originally understood.

The most relevant text in this case is obvious and clear: “The Vice President . . . shall be the President of the Senate but shall have no Vote, unless they be equally divided.” Professor Tribe never actually quotes this language, no doubt because it is hard to deny what any reasonable reader would believe it means: The Vice President has the authority to break ties whenever the Senate is equally divided.

Agreed.  One might say, though, that he is a little late to the party.



Must the Speaker Resign to Become Acting President? (with an Answer from Seth Barrett Tillman)
Michael Ramsey

Earlier we discussed whether it is constitutional for Congress to provide that the Speaker of the House (or the President pro tempore of the Senate) will become acting President upon the death or disability of the President and Vice President.  Let's assume it's constitutional.  A followup question: must the Speaker (or President pro tempore) resign to become acting President, or could they hold both offices together?

The current presidential succession act (3 U.S.C. 19(a)(1) requires that the Speaker resign:

If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

But it appears that the first presidential succession act, adopted in 1792, did not have this requirement:

That in case of removal, death, resignation or inability both of the President and Vice President of the United States, the President of the Senate pro tempore, and in case there shall be no President of the Senate, then the Speaker of the House of Representatives, for the time being shall act as President of the United States until the disability be removed or a President shall be elected.

Might this run afoul of the incompatibility clause (art. I, sec. 6)?

 [N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

(Thanks to Andrew Hyman for raising the question.)

It depends on whether acting President is an "Office under the United States."  The obvious person to ask this question is Seth Barrett Tillman.  Here's his response: 

You ask: "[I]f the Speaker becomes acting president under the succession act, in your view does the incompatibility clause require that the speaker resign from Congress?"

Under Amendment XXV, when a VP succeeds to the presidency following a Section 3 or Section 4 declaration of presidential inability, the VP becomes "Acting President." A credible argument can be made that the "Acting President" was intended to be an "office." This language of "Acting President" only appears in Amendment XXV.

By contrast, under Article II, Section 1, Clause 6, a statutory successor to the presidency does not become President; rather, such a person "acts as President." My view is that characterizing an Article II statutory "successor" as an "Acting President" is a misnomer. 

A statutorily designated "officer" who "acts as President" has a special authority granted by statute enacted pursuant to Article II, Section 1, Clause 6. My view is that the only office a statutory successor holds is the one which qualifies him to succeed, and that such an officer does not hold the office of president or the office of "Acting President." The statutory officer who "acts as President" does not hold an "office" associated with the presidential office, and, therefore, does not hold an "office under the United States" associated with the presidency. 

For that reason, the Constitution's Incompatibility Clause does not pose a bar against a Speaker or other House or Senate officer to act as President: one who acts as President does not hold an "office" and does not hold an "office under the United States" in consequence of acting as President. Because the Incompatibility Clause's "office under the United States"-language does not apply at all to a Speaker acting as President, the clause imposes no bar against a Speaker acting as President, and it imposes no duty on a "rising" Speaker to resign from Congress or to resign the position of Speaker. The Presidential Succession Act imposes such a duty--but that is a different issue. 

Apparently George Washington agreed, at least on the conclusion, as he signed the 1792 succession act without any recorded objection.

ANDREW HYMAN ADDS:  Thanks to Seth Barrett Tillman for this answer.  Assuming this answer is correct, a followup question is this:  Does the Succession Clause (Art. II, Sec. 1) imply that a person can continue to act as president only by maintaining the office that entitled that person to act as president?