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02/15/2021

In response to (a portion of) Andrew Hyman's recent post
David Weisberg

Andrew Hyman has commented on a recent post by Josh Blackman and Seth Barrett Tillman which provides, I think, strong historical evidence that an elective federal office—membership in the House or the Senate, or the presidency or vice-presidency—is not an “Office of honor, Trust or Profit under the United States” within the meaning of the Impeachment Disqualification Clause.  (Art. I, Sec. 3, Cl. 7.)  If that is correct, then disqualification would not bar the convicted party from later serving as one of those elected federal officers.

In his comment, Mr. Hyman refers to one of my own previous posts, in which I made a ‘structural’ argument that reaches the same conclusion suggested by the historical research done by Blackman and Tillman.  But I don’t think it is correct to say, as Mr. Hyman does, that I “argued” that the Presidential Eligibility Clause “does list some qualifications” for President.  No argument would be needed for that.  My argument was and is that the original unamended Constitution sets forth specific, explicit eligibility requirements for serving in three elective federal offices.  A Representative must be at least twenty-five years old, must have been a citizen for at least seven years, and must, when elected, be an inhabitant of the State in which he shall be chosen.  (Art. I, Sec. 2, Cl. 2.)  A Senator must be at least thirty years old, must have been a citizen for at least nine years, and must, when elected, be an inhabitant of the State for which he shall be chosen.  (Art. I, Sec. 3, Cl. 3.)   A President ust be a natural born citizen, must be at least thirty-five years old, and must have been a resident within the U.S. for at least fourteen years.  (Art. II, Sec. 1, Cl. 5.)  (Eligibility requirements for the presidency, which had formerly only implicitly applied to the vice-presidency, were explicitly applied to the vice-presidency by the 12th Amendment.)

Thus, there are very specific requirements for each elective federal office, and they all relate either to a person’s citizenship, or age, or length of habitation in the State in which he or she is elected (for members of the House and Senate) or residency in the U.S. (for President).  But, if the Impeachment Disqualification Clause applies to these offices, it turns out that the explicit eligibility requirements for those three federal elective offices are all importantly incomplete (and were all importantly incomplete at the time the Constitution was ratified), because for each of those elective offices there would be the additional requirement that the person not have been disqualified by the Senate.

The ancient canon of interpretation—expressio unius est exclusio alterius—tells us that the expression of one or more things in a particular class implies the exclusion of other things in that class that are not expressly mentioned.  This is common sense.  Here, in three distinct and separate provisions, the Constitution prescribes eligibility requirements for three different federal elective offices, and in none of those provisions is it stated that, to be eligible, the person must not have been subject to "disqualification" by the Senate.  The most reasonable conclusion is that a federal elective office is not within the ambit of the phrase “any Office of honor, Trust or Profit under the United States” in the Impeachment Disqualification Clause (which is the conclusion supported by Blackman and Tillman's historical research).

It is instructive to contrast the very specific eligibility requirements for service in the House or Senate, and the presidency, with the complete absence of any eligibility requirements for all the officers the President, with the advice and consent of the Senate pursuant to Article II, Section 2, Clause 2, may appoint: “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law[.]” 

There are no stated eligibility requirements at all--none--for those officers. Therefore, the Impeachment Disqualification Clause could be applied to bar a particular person from holding any one of those offices, without any inconsistency or conflict with specific eligibility requirements that make no reference to such disqualification.  The three federal elective offices are very different; each one has specific eligibility requirements that make no reference whatsoever to Senate disqualification.  Importing or discovering unexpressed requirements that persons not have been disqualified by the Senate conflicts with the very specific lists of requirements actually expressed in the Constitution.  

ANDREW HYMAN ADDS: As I mentioned previously, the 22nd Amendment says that a president is ineligible if he has already served two terms as president.  That specific eligibility requirement joins the other eligibility requirements enumerated at locations within the original unamended Constitution, and the expressio unius canon continues to apply to all of them as a whole, so that neither Congress nor the individual states can impose further presidential eligibility requirements.  I am not hearing that David Weisberg disagrees with any of that.  In my view, the presidential eligibility requirements in the Constitution do not have to be listed together in one sentence, but can be enumerated in scattered fashion, just as the 22nd Amendment is located separately from Article II, Section 1 (which requires birthright citizenship), and just as both of them are located separately from the requirement in Article I, Section 3 that presidential candidates not have been disqualified by the Senate.  In this eligibility situation, we have an enumeration of qualifications, but the enumeration is somewhat scattered, just like the enumeration of rights in the Constitution is somewhat scattered (I agree with Ilya Shapiro on that point and with many others who have made this same point about the enumeration of rights being scattered).  In any event, the expressio unius canon does not require any enumeration at all, much less a one-sentence or one-paragraph consecutive list; Justice Scalia gave the example of a car dealer who promises low financing "for purchasers with good credit," which of course implies by negative implication that low financing is unavailable for purchasers with bad credit. 

FURTHER NOTE FROM ANDREW HYMAN:  On further reflection, please disregard my comment above, and instead refer to a newer blog post of mine that deals in greater depth with the expressio unius canon.