A Short Response to Roger Parloff and Others

The Ineligibility or Sinecure Clause (Article I, Section 6, Clause 2) states:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time . . . . (emphasis added).

Here and elsewhere, the Constitution of 1788 distinguishes "appoint" from "elect." Whether or not contemporaneous popular usage did that too is an entirely different question—just as legal usage sometimes differs from popular usage.

For a different point of view, see Roger Parloff, 'What Justice Scalia Thought About Whether Presidents Are "Officers of the United States",' Lawfare (Jan. 24, 2024, 9:01 AM), <https://lawfaremedia.org/article/what-justice-scalia-thought-about-whether-presidents-are-officers-of-the-united-states>.  If Parloff and others are correct, if appoint and elect are basically synonyms across constitutional provisions, then a strategic Congress could raise the President's (or Vice President's) salary, and if Congress did so, then a Senator with 2 or 4 years remaining on his/her term would be barred from being elected/appointed to the presidency and vice presidency. In other words, an incumbent President seeking re-election, working in tandem with a cooperative Congress, could bar all senators (with 2 or 4 years remaining on their term) from the minority party, by raising the President's salary $1! And they say the Blackman/Tillman position has odd, unexpected, undesirable consequences? Moreover, this point is not new. It has been in the literature since circa 2009. See Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution's Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol'y 107, 134–36 (2009).

Parloff might try to argue that the Sinecure Clause does not apply to the presidency, because the presidency is not a "Civil Office under Authority of the United States." That would be odd. As we understand it, Parloff's position is that the President is an "Officer of the United States" and the presidency is an "Office under the United States." Why wouldn't the presidency also be a "Civil Office under Authority of the United States"? And we have addressed at length why the President is not a military official. It would seem to follow that under Parloff's position, the presidency would be considered an appointed position under the Sinecure Clause. As a result, all of these negative consequences inhere to his position.

In a recent Volokh Conspiracy post, we wrote:

We have little doubt there will be more rushed and flawed entries in the debate. Critics with little or no expertise in the field will find something, anything, to prove that we are wrong. No doubt these critics will be unfamiliar with our full body of scholarship, which well exceeds a thousand pages. Critics will attack positions we never took, and ignore the positions we have actually taken. Critics will be unfamiliar with the proper context of sources from the 18th and 19th centuries. And critics will approach their conclusion with absolute certitude that they are right and Tillman/Blackman are wrong. Trust us, we've seen it all before. We could make a list of people who have said we were wrong, and then later had to retract or more. The list keeps growing.

Over the next two months or so, the United States Supreme Court is likely to provide some resolution to one or more of these contentious issues. And, we expect that more than a few will try to leave a mark on this debate in the near term and prior to judicial resolution. They will post new "research" at the last minute knowing full well that those who are in a position to confirm the accuracy of newly reported "research" will have little or no time to do so before the Supreme Court decides this case. And, for a few, that is not a bug, it is the chief feature.

If and how we respond will be a function of what time and other constraints we face in this final, pivotal period. Our candid message to you—the reader—is to approach such new, late-breaking entries in the debate with some caution.