A President Who is Impeached and Removed Can be Disqualified From His Own Office as Well as Others
Andrew Hyman
John Vlahoplus has responded on this blog to the invitation from Seth Barrett Tillman and Josh Blackman in which they welcomed responses to their conclusion that the presidency is not an “Office . . . under the United States” because it is an elected rather than appointed position. Vlahoplus cites considerable originalist evidence that Tillman and Blackman are mistaken, though Vlahoplus indicates that they "may be correct despite the wealth of contrary public usage" in the 1780s. I agree with Vlahoplus that the originalist evidence (from both the 1780s and the 1860s) weighs strongly against the idea that the President is not an officer under the United States (and "of" the United States).
As I understand the thesis of Professors Blackman and Tillman, an incumbent President of the United States is free to simultaneously be a United States Senator or Representative; is free to accept presents, emoluments, and offices from foreign nations without the consent of Congress; and cannot be disqualified from returning to the presidency even after being impeached and removed. To the contrary, in a previous blog post, I cited some of the many times that the Constitution refers to the presidential "office," and addressed some of the textual evidence that Blackman and Tillman cite including the Appointments Clause, the Commissions Clause, the Impeachment and Removal Clause, and the Oaths Clause. Previously, I also pointed out why a Treasury Department Report by Alexander Hamilton in 1793 does not help their thesis either.
In their most recent blog post (linked above), Blackman and Tillman cite the following "new" pre-ratification evidence to support their thesis: Federalist No. 77, where Hamilton described the consequences of impeachment and disqualification by saying, "[T]he President [is] at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other...." Since Hamilton used the word "other," the Blackman-Tillman inference is that Hamilton was suggesting the President cannot be disqualified from the presidency itself. This inference is mistaken, though, in view of Federalist No. 79, which says that federal judges "are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other." This statement about judges is parallel to what Hamilton had already said about the President, and I doubt that many people believe federal judges cannot be disqualified from the same office from which they were removed (I also note that the words "any other" are very broad and therefore naturally suggest that judges who are impeached and removed can also be disqualified from the presidency despite the contrary thesis of Blackman and Tillman).
It’s true, as David Weisberg has argued on this blog, that the Presidential Eligibility Clause does list some qualifications: natural born citizen, older than 35, residency of 14 years. But there are other qualifications too, such as not already having served two terms. It’s the sum total of qualifications in the Constitution that rule out additional ones, whereas the Presidential Eligibility Clause alone does not necessarily rule out further qualifications.
The thesis of Blackman and Tillman runs counter to plain English, which is fine, but requires substantial originalist evidence that a technical meaning was intended. As John Vlahoplus points out, the originalist evidence goes the other way. So does the evidence of later history; how many incumbent presidents have been voting members in the U.S. Congress?
I will just wrap up here with a few miscellaneous quotes. In 1788, Virginia politician Alexander White gave his public opinion about emoluments regarding the President: "The president cannot procure in addition to his salary....How then can he propose to promote his own honor and imolument [sic], but by acting such a part during his presidency, as will induce the people over whom he presides to reelect him?" In Federalist No. 76, Hamilton strongly implied that presidents may not simultaneously serve as voting members of Congress: "The Constitution has provided some important guards against the danger of executive influence upon the legislative body. It declares that '...no person holding any office under the United States shall be a member of either house during his continuance in office.'" Finally, long before the Blount impeachment case, James Monroe in 1788 implied that presidents are not to be considered representatives of the people: "I conceive that the Senators are not impeachable....The Senators are representatives of the people; and by no construction can be considered as civil officers of the State....To impeach either the members of Senate or House of Representatives, would, be to impeach the representatives of the people, that is the people themselves, which is an absurdity." This makes sense because it was then understood that Presidents would not be elected primarily to do the bidding of the electorate, but rather to execute the laws.