Is There a Presidential Exception to the Usual Power of Congress to Impose Disqualification for Executive Branch Employment as a Punishment for Federal Crimes?Andrew Hyman

The Constitution prevents Congress from adding qualifications for members of Congress, but that fact does not automatically limit how Congress can treat presidential qualifications.  However, in a February post by Professors Seth Barrett Tillman and Josh Blackman at the Volokh Conspiracy blog, they wrote (all bracketed words are as in their blog post):

In Federalist No. 60, Hamilton argued that Congress lacks the power to add to the qualifications for elected federal positions. In that paper, Hamilton wrote, "[t]he qualifications of the persons who may choose or be chosen [for a seat in Congress], as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature."

In that second sentence, Tillman, Blackman, and Hamilton are 100% correct, and they accurately limit the scope of that sentence to seats in Congress.  But the first sentence is an overbroad inference from the second sentence, because the first sentence apparently makes an assertion about all elected federal positions, not just seats in Congress.  

It should go without saying that presidents and members of Congress are in different branches of government, controlled by different clauses in different sections of the Constitution, and it would be wrong to say that Federalist 60 somehow supports the idea that Congress has no power to add qualifications for the presidency, which is an elected federal position.  Such a lack of congressional power is exactly the position that Blackman and Tillman are advocating, but they ought to have made clear that Hamilton said nothing in Federalist 60 to prove it.

Now, in an April 30 piece in the Illinois Law Review Online, Tillman and Blackman suggest the same overbroad inference from Federalist 60 (all bracketed words are as in their piece):

Our argument starts from a basic premise: Absent express constitutional authorization, Congress cannot impose additional qualifications for elected federal officials beyond those already expressly enumerated in the Constitution. This position is not novel. In Federalist No. 60, Alexander Hamilton argued that Congress lacks the power to add to the qualifications for elected federal positions. He wrote, “[t]he qualifications of the persons who may choose or be chosen [for a seat in Congress], as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the [national] legislature.”

This last sentence by Tillman and Blackman is correct, but the rest exaggerates it.  This exaggeration can be confirmed by looking at the relevant material from Federalist No. 60 without any ellipsis or brackets.  Hamilton begins by discussing the authority of the national government (emphasis added):

Its authority would be expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon another occasion, are defined and fixed in the constitution; and are unalterable by the legislature.

Hamilton is obviously referring here not to Article II, but rather Article I of the Constitution, which says (emphasis added): 

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Choosing Senators.

This key phrase (“Times, Places and Manner”) is used only with respect to Congress, and not with respect to the President, in the U.S. Constitution.  So why do Tillman and Blackman quote Federalist 60 to bolster their argument about the President?  As I wrote previously at this blog, “Notice that that time, place, and manner language of Article I forms a list that excludes items not listed, whereas Article II does not include such a list pertaining to presidential elections (that is, Article II does not seem to create any ‘presidential exception’ to the usual power of Congress to impose disqualification for federal office as a punishment for federal crimes).”  It's true that the Constitution lists some presidential qualifications:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

But this is a list of civil qualifications, which impliedly rules out other civil disqualifications; it's not a list of criminal disqualifications, and so does not rule out any criminal disqualifications.  The expressio unius canon only rules out items of the same type as those listed, and does not rule out things of a different type, which is probably why Hamilton did not rely upon the listing of congressional qualifications to rule out other congressional disqualifications; instead, Hamilton relied upon the "time, place, or manner" language of Article I which ruled out much more than did the listing of congressional qualifications.  Likewise, when Madison in Federalist 52 applied the expressio unius canon to the listing of qualifications for House members, he only found that it forbade Congress from imposing additional civil disqualifications ("the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith").