The Volokh Conspiracy has published our third installment on the Emoluments Clauses Litigation. This post answers nine frequently asked questions that are implicated by the fact that the President does not hold “Office . . . under the United States.”
Here is the answer to the most frequently-asked-question:
1. Does the incompatibility clause bar the president from concurrently serving in the House or Senate?
The incompatibility clause states that “no person holding any Office under the United States” may serve in either the House or Senate. Professor Steven G. Calabresi and now-Justice Joan L. Larsen explained decades ago that this clause was an ethics provision, not a “general separation-of-powers provision.” As illustrated in Federalist No. 76, the framers saw the English Constitution as corrupt because the king could bribe members of parliament (MPs) with lucrative office. But the king never bribed MPs by making them king. Likewise, the president could bribe members of Congress with lucrative positions, but the president could not make members of Congress president. Simply put, the primary purpose of the incompatibility clause had nothing to do with barring the president from concurrently serving in the House or Senate.
There are many bad consequences the Constitution does not expressly preclude. The (federal) Constitution does not expressly bar a person from concurrently holding two state positions. Nor does it expressly bar a person from concurrently holding an appointed Judicial Branch position and an appointed Executive Branch position (John Marshall served as both chief justice and secretary of state during the Adams administration). Nor does the Constitution expressly bar a person from concurrently holding two House seats, or two Senate seats, or a House and Senate seat. All these results are (arguably) bad. But the fact that a result is bad does not mean it is addressed by the Constitution’s incompatibility clause and its “Office under the United States” language.
Of course, some of the bad joint office holdings described above, just like joint presidential-congressional officeholding, might be barred on structural grounds. For example, Professor Akhil Reed Amar has written that even though, as a textual matter, the vice president should preside at his own impeachment trial, other constitutional principles would bar such a conflicted proceeding. Perhaps, similar structural constraints might bar a president from concurrently serving in the House or the Senate. But even if such an implied structural constitutional bar exists, that limitation against concurrent officeholding is not rooted in the text of the incompatibility clause and its “Office under the United States” language.