query for Professor Chafetz regarding response to Professor Dougherty on Impeachment

[Josh Chafetz]

Seth,

I take it that you agree with the point I was making in my previous post - i.e., that members of Congress do not hold an "Office of honor, Trust or Profit under the United States," and thus under art. I, sec. 3, cl. 7, conviction in an impeachment case cannot result in the convicted officer's being disqualified from future membership in Congress.  My principal piece of evidence for this claim, as I mentioned in that posting, is the art. I, sec. 6, cl. 2 provision prohibiting any "Person holding any Office under the United States" from being "a Member of either House during his Continuance in Office."

I take it, then, that what underlies your question is why I disagree with your claim (made here:  http://ssrn.com/abstract=1099355 ) that a President may simultaneously serve in Congress.  My disagreement there is a structural one - I think it is highly incompatible with the basic structure of government created by our Constitution that the same person could simultaneously serve as President and as a member of Congress.  Where the text can plausibly be read in two different ways - and here I agree with the responses to your article by Calabresi and Prakash that the conventional reading is at least plausible - then I choose to interpret the text in the way that I think is most consistent with the basic structure of the document as a whole.  You have previously expressed skepticism about structuralist reasoning generally, but that, I'm afraid, is an issue we won't be able to hash out satisfactorily on this listserv.

Yours,
Josh

----------------------------
Josh Chafetz
Assistant Professor of Law
Cornell Law School
238 Myron Taylor Hall
Ithaca, NY  14853
607-255-1698
josh-chafetz at lawschool.cornell.edu<mailto:josh-chafetz at lawschool.cornell.edu>

http://ssrn.com/author=493567

________________________________
From: seth tillman [mailto:sbarretttillman at yahoo.com]
Sent: Thursday, April 02, 2009 4:10 PM
To: Josh Chafetz; doughr at udallas.edu; conlawprof at lists.ucla.edu
Subject: re: quer for Professor Chafetz regarding response to Professor Dougherty on Impeachment



I guess this is my opportunity to press
Professor Chafetz in a public forum.

In responding to Professor Dougherty, Professor Chafetz noted that members of Congress do not receive presidential commissions -- and this long-standing tradition is evidence that members are not "officers of the U.S."  In other words, given that the Commissions Clause apparently mandates that the President commission all officers of the U.S., the absence of such commissions is evidence that George Washington and the Executive Branch since 1789 did and does not believe that members are officers of the U.S.

Professor Steven G. Calabresi recently noted, (See 157 PENNumbra 134, 145), that Presidents and VP likewise do not receive such commissions on taking office.  They neither self-commission nor receive commissions from the predecessor president.  Does this long-standing tradition equally establish that Presidents and VP are not "officers of the U.S." and "officers under the U.S" such that an impeached, convicted, and disqualified person can be subsequently elected to the presidency or vice presidency, notwithstanding prior disqualification by the Senate?

I thought your view (from a post on PrawfsBlawg) was that the President and VP are (both? or either?) "officers of the U.S" and/or "officers under the U.S"? In 1995, Professors Vikram and Akhil Amar suggested that there was no difference between these two categories: "officers of the U.S." and "officers under the U.S." See 48 Stanford L. Rev. 114-15. Do you think the two categories are identical?

Seth


Seth Barrett Tillman
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=345891
http://works.bepress.com/seth_barrett_tillman/



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