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Monday, November 05, 2012

An Open Letter from Seth Barrett Tillman to Professor Saikrishna B. Prakash (and other defenders of the unitary executive theory)

Dear Professor Prakash et al.,

Back in 2008, you and I had a short exchange in the Duke Journal of Constitutional Law & Public Policy. You may remember that in that exchange I argued that the Constitution’s varying usage in regard to office and officer was meaningful. Specifically, I argued that the Incompatibility Clause, using “Office . . . under the United States” language, did not reach the presidency (and vice-presidency), and as a result, that clause did not bar a sitting Senator (e.g., Clinton, McCain, or Obama) from simultaneously holding the presidency. In other words, the Incompatibility Clause bars Senators and Representatives from simultaneously holding appointed office (in any of the three branches), but it is not a bar to other elective positions (e.g., the vice presidency and the presidency).

In 2008, you did not agree with my theory. 

Today, in 2012, we face a nearly identical question . . . should Representative Ryan win re-election to his House seat and be elected to the vice presidency, can he hold both offices? My position is “yes, he can (at least as far as the Incompatibility Clause is concerned).” I am wondering if your current position is the same as it was in 2008: i.e., the Incompatibility Clause applies to the presidency (and, by implication, to the vice presidency).

Part of the reason I ask is that I now have some additional evidence relating to the events of 1787-1797 – evidence which I did not put forward in our 2008 debate. And although you can still maintain that you are correct about the Incompatibility Clause, if you do, I think the consequence of your maintaining your 2008 position is that you will have to give up on the unitary executive theory (about which you have published from time-to-time). It seems to me your two positions contradict one another.

Let me explain. 

In 2008, I noted that President Washington accepted a gift (the key to the Bastille) from LaFayette (then a French government official). The Foreign Emoluments Clause prohibits anyone holding an “Office . . . under the United States” from accepting, absent congressional consent, a gift from a foreign government. Washington accepted the key; he never asked for congressional consent; he never received congressional consent. You responded that LaFayette was (practically, even if not technically or legally) Washington’s “adopted son” and so the gift was not from a foreign state, but was a personal gift.


But it turns out Washington received other such gifts. For example, President Washington accepted a framed full-length portrait of Louis XVI from the French ambassador. The ambassador was not Washington’s “adopted son.” Here too, Washington never asked for or received congressional consent to keep the gift. My position is that the presidency is not an “Office . . . under the United States” (as used in the Foreign Emoluments Clause and the Incompatibility Clause) and so Washington was constitutionally permitted to keep the gift, even absent congressional consent.


Surely, you are not going to argue that the French ambassador was (like LaFayette) Washington’s “adopted son,” right? Surely, you are not going to argue that this too was a personal gift, as opposed to a gift from a foreign state, are you?


I suppose you could argue that either: (1) Washington made an inadvertent mistake; or (2) Washington was knowingly violating the Constitution. But, if you embrace either of these two possibilities, then is not your version of the unitary executive theory dead? Your version of the unitary executive theory depends on the precedents established by George Washington and his administration. It seesm to me that you cannot rely on those precedents if Washington was unaware of the Foreign Emoluments Clause or was unwilling to abide by its express command.


The same is true for Alexander Hamilton. In 1792, during Washington’s administration, Secretary of the Treasury Hamilton was ordered by the Senate to compile a list of “every person holding any civil office or employment under the United States” and their salaries. After nine months, he returned a 90-page list which omitted the President and Vice President. But, it did include appointed or statutory officers in each of the three Branches. For example, Hamilton included non-elected Legislative Branch officials: e.g., the Secretary of the Senate and his staff, and the Clerk of the House and his staff. For Hamilton, on this occasion, “Office . . . under the United States embraced only appointed or statutory officers, not the President or VP, i.e., holders of elected or constitutionally-created positions.


What do you think of this Washington-era documentary record? Do you think Hamilton (like Washington above) just forgot (!) to include the President and Vice President? Why does your position require that so many forgot so much so frequently? Is not the better view that Hamilton thought “Office . . . under the United States” did not reach the presidency and vice presidency?


I suppose you could maintain that Hamilton erred. But how could Hamilton have erred in this fashion? In 2008, you argued that it was plain, clear, obvious, etc., etc. that the presidency was an “Office . . . under the United States” (and, so, clearly subject to the Incompatibility Clause). But, if you are correct, if it were obvious circa 1789 that the presidency was an “Office . . . under the United States,” then Hamilton’s error is very troubling. And if it is troubling, then your reliance on the Hamilton and Washington-era precedents is misplaced.


In other words, the unitary executive hypothesis (at least, that variant developed by you, and Steven Calabresi, and Akhil Amar) relies on Hamilton and on other Washington-era precedents. See, e.g., Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 642 n.450 (1994) (“Moreover, Washington was acutely aware that the precedents established in the beginning would influence posterity. Accordingly, [President Washington] ‘devoutly wished’ that ‘these [Executive Branch] precedents may be fixed on true principles.’” (quoting Washington to Madison correspondence from May 5, 1789)); Saikrishna Prakash & Steven D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72, 120 n.185 (2006) (favoring Hamilton’s position on removal which he announced during the Washington administration over Hamilton’s position during ratification); see also, e.g., Akhil Reed Amar, America’s Unwritten Constitution Chapter 8 Following Washington’s Lead: America’s “Georgian” Constitution 319-27 (2012) (expressly relying on Washington-era precedents in defense of the unitary executive theory).

Professor Prakash, I think you (and the others who have defended the unitary executive theory based on the Washington-era precedents) really need my view of the past. Because if you reject it, then, it seems to me, the unitary executive hypothesis is dead.


Posted by Ethan Leib on November 5, 2012 at 07:48 PM | Permalink


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Tillman is very persuasive. He is also a very lucid writer. So absent rejoinder, I am persuaded that the modern consensus view is wrong.

Posted by: discretionary docket | Nov 8, 2012 4:13:09 AM

Joe writes: “’But how could Hamilton have erred in this fashion?’ Why not? I answer these questions somewhat in the spirit of Thomas’ reply. The Constitution provides many competing principles to follow ….”

OK, so tell me … what was the competing principle which accounts for Hamilton’s letter. The Senate asked for a list of all holding “Office … under the United States,” and their salaries. Hamilton took roughly 9 months and 90 pages to respond. He left off the President and the Vice President: the highest and fourth highest paid federal officials. What “competing principle” accounts for the content of his letter. Sure you can say it was a mistake. But it is difficult to see why he made such a mistake. The phrase – Office under the United States – was used in the Constitution and in many early federal statutes. Presumably, the Senate and Hamilton understood what it meant. Your reaching to “competing principles” does not identify those principles or account for Hamilton’s conduct.

Ockham’s razor. Hamilton left out the President and Vice President because he did not believe such information was responsive to Congress’ request for information.

Again, Washington’s and Hamilton’s conduct here cohere under my view of Office under the United States. Do you even have a view of what this phrase means? If so, why not tell us, and then we can all make a judgment as to which competing view of this language better coheres with text, history, structure, precedent, and … yet unidentified “competing principles.”

Sometimes simplest is best.

Posted by: Seth Tillman | Nov 7, 2012 11:55:31 AM

Anon writes: “Why couldn’t it be that most officials, even going back to Washington’s time, has understood or acquiesced in the view that under enforcing the foreign emoluments clause was important for promote the young nation’s more pressing interests in developing robust foreign relations?”

There are three problems with your argument. First, Ockham’s razor applies. George Washington accepted these gifts; the public knew about the LaFayette gift and probably also knew about the ambassador’s gift. So we are not talking about “most officials” – we are talking about everyone (including Washington’s political opponents) at the time and no one complained. The simplest explanation is that no one complained because no one thought Washington’s behavior was inconsistent with the Constitution. Otherwise his opponents would have complained.

Second, there was no reason to under enforce this provision. Nothing stopped Washington from taking the gift AND asking for congressional consent. These items were presents, but they were hardly quid pro quo bribes. Washington was elected by the electoral college unanimously: Congress would have consented. So the nation’s “pressing interests in developing robust foreign relations” was not at risk.

Third, Washington’s foreign service officers all knew the Foreign Emoluments Clause applied to them. They either refused gifts or accepted them on behalf of the United States or accepted them contingent on receiving congressional consent. One exception was Jefferson. Jefferson – for arguably legitimate reasons of state – took possession of one such gift using secret communications and a third-party intermediary, and he failed to disclose it. By contrast, Washington personally accepted the portrait, sent a thank-you note to the ambassador, and then put it on display at his home. The different behavior of Washington and Jefferson leads me to believe: that Jefferson understood the scope of the Foreign Emoluments Clause as reaching him (an officer – Secretary of State), and that Washington did not understand the Foreign Emoluments Clause as reaching presidents.

Complexity should be reserved for complex problems. Is this really one of them?

Posted by: Seth Tillman | Nov 7, 2012 11:45:49 AM

Thomas writes: “I think it is an interesting issue; but whether history (or originalism) really provides the right answer is another question.”

By right answer, I assume you mean right from the point of view of a court adjudicating a contested provision. I have not made use of originalism for that purpose. I have only put forward a textual and historical analysis to understand or interpret the Constitution, particularly its 1787 provisions.

There may be several provisions of the Constitution that are best understood as open-ended or fluid or were even intended by its creators to work that way under future contingencies. But it strikes me that the Office-language in the Incompatibility Clause (and elsewhere in the Constitution) is not such language. Why? Decisions taken in regard to congressional incompatibility are taken by a single house acting alone, absent presentment, absent bicameralism, and (in most cases) absent meaningful or timely judicial review. Such legislative determinations do not require supermajorities, just simple majorities: a majority of those voting, a quorum present. If the Framers had chosen ambiguous language that would have let the majority oppress and exclude the minority. In such circumstances, it stands to reason that the anti-federalists would have objected. And I might add, rightly so. But where is there a record of any such objection or anything like it?

The better view is that Office under the United States (as used in the Incompatibility Clause and elsewhere in the Constitution) was not understood or intended to be fluid, but had a fixed meaning. I suggest Office under the United States encompasses all holding statutory or appointed office: any office created or defeasible by Congress via statute. That interpretation is confirmed by Washington’s conduct after receiving LaFayette’s gift and after receiving the French Ambassador’s gifts, and, also, by Hamilton’s letter to the Senate.

Posted by: Seth Tillman | Nov 7, 2012 11:17:38 AM

I thank you all for your comments. I will respond to each in turn.

Professor Levitin asks about the provenance of the gifts – the key, and the frame & portrait. I report on the gifts’ provenance in detail here . . . Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 NW. U. L. REV. (forthcoming circa 2012-2013), 107 NW. U. L. REV. COLLOQUY 1 (2012), http://ssrn.com/abstract=2012800. Bottom line: President Wasington kept both gifts; they remain on display at his Mt. Vernon estate to this day. Washington never transferred the gifts to the United States, to any federal department, or to any officer to hold on behalf of the United States. He kept them; it is that simple.

These two episodes pose a systemic challenge to the standard view of both the Foreign Emoluments Clause (“FEC”) and the Constitution’s language relating to “office” and “officer.” The FEC provides: “[N]o Person holding any Office of Profit or Trust under them [i.e., the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” The modern consensus view is that FEC’s language squarely encompasses the President (and, apparently, the Vice President). The modern consensus position includes any number of prominent adherents: e.g., the Office of Legal Counsel and Professor Akhil Amar. But, Washington’s actions are inconsistent with the modern consensus position. Moreover, there is good reason to believe that Washington’s conduct was well-known by his contemporaries . . . yet no one (as far as I can tell) voiced a peep of complaint in regard to Washington’s willingness to keep the gifts absent congressional consent. Why?

Now, it seems to me that there are (at least) two possibilities:
(1) Washington acted wrongly, and the modern consensus is right; or,
(2) Washington acted rightly, and the modern consensus is wrong.

A person embracing the first scenario (Washington acted wrongly) cannot blithely assume that Washington simply forgot about the FEC. We do not usually presume that public officials forget their duties. Moreover, as Professor Teachout has argued, foreign corruption was a real concern among the Framers and at the founding. So, even if Washington forgot, it does not explain the lack of public comment (or outrage!). Again, a person embracing the first scenario might conclude that Washington was either indifferent to the Constitution’s express command or something much worse. These latter possibilities are conceivable, but they seem deeply inconsistent with what we know about Washington’s character. And, more importantly, any of these possibilities are deadly to Prakash’s, Calalbresi’s, and Amar’s defense of the unitary executive theory. Their defense of that theory relies on the precedents established by Washington and his administration.

That takes us to the second scenario. Washington acted rightly. The FEC does not reach the presidency. No one complained about Washington’s conduct because it was widely understood, at the time, as proper.

Now, you might ask how does this alternative view cohere with the Constitution’s text? The alternative view is that when a constitutional provision is directed at the presidency, the provision either uses express language or uses some other descriptor (beyond that of office of or under the United States). So the Commissions Clause – using only generic office-language – does not reach the President and Vice President. (Commissions Clause: “[The President] . . . shall Commission all the Officers of the United States.”) That is why presidents are not self-commissioned, nor do they commission their successors, nor do they commission vice presidents. The Impeachment Clause – using express language – does reach the President and Vice President. (Impeachment Clause: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”) The Religious Test Clause reaches the President and Vice President, not through its office-language, but through its public trust language. (Religious Test Clause: “[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”). This view coheres with Hamilton’s behavior: when the Senate asked for a list of all holding Office . . . under the United States, and their salaries, Hamilton left out the President and Vice President. Hamilton left out the highest and the fourth highest paid federal officials. Those who embrace the consensus position can choose to say that Hamilton was mistaken … and Washington was mistaken … so you can see … that those embracing the consensus position with regard to office and officer have a problem if they then turn around and tell us to rely on Washington and Hamilton when it comes to the unitary theory of the executive.

To sum up, the first scenario (Washington acted wrongly) is deeply inconsistent with the unitary executive theory (at least that version supported by Prakash, Calabresi, and Amar and which is based on the Washington-era precedents). Alternatively, a person could accept both the second scenario (Washington acted rightly) and the unitary position . . . but such a person would (I think) have to reject the modern consensus in regard to the Constitution’s use of “office” and “officer.”

This latter possibility – rejecting the modern consensus with regard to office and officer – would have significant implications for scholarship relating to any number of clauses. For example, it would mean that the Incompatibility Clause (using “Office under the United States” language) only precludes a Representative or Senator from holding statutory office, but not other elected office (e.g., the presidency and vice presidency). Likewise, much scholarship criticizing our statutory succession regime would seem to lack originalist foundations. See Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 STAN. L. REV. 113 (1995).

Posted by: Seth Tillman | Nov 7, 2012 11:03:48 AM

Do we know if these were personal gifts to Washington or gifts to the United States, like the
Statue of Liberty? Did Washington treat the gifts as his personal property or did they go to the Treasury or Archives?

Posted by: Adam Levitin | Nov 6, 2012 7:41:45 PM

"But how could Hamilton have erred in this fashion?"

Why not? I answer these questions somewhat in the spirit of Thomas' reply. The Constitution provides many competing principles to follow, particularly if you look at the different types of constitutional interpretation, and as a whole, to me it leads me (see a discussion a few months back on Dorf on Law) to think someone constitutionally are not able to serve in both houses of Congress, the two houses there in part to provide a check on each other.

A person serving as the president of one & a voting member of the other is a problem. We can go through the various specific wording of the Constitution and back this up too, but such a "constitutional stupidity" as Ryan serving both roles can only be allowed if necessary, not if it seems possible.

Posted by: Joe | Nov 6, 2012 10:44:17 AM

Why couldn't it be that most officials, even going back to Washington's time, has understood or acquiesced in the view that underenforcing the foreign emoluments clause was important for promote the young nation's more pressing interests in developing robust foreign relations? Isn't there now a broad and long-lived statute generally permitting the president to accept foreign gifts -- which are a common part of diplomatic exchanges, after all -- provided that they're turned over to become property of the United States? Perhaps that statute is a formalization of earlier practices.

Some constitutional provisions are more important than others, and some government interests stronger than others, at different times -- sometimes rigid enforcement of one constitutional provision (e.g. foreign emoluments clause, the vesting clause of article I) is sacrificed for the sake of other, more pressing structural interests (e.g. building foreign relations in an insecure time, having an effective federal administrative state during social/financial crises). It doesn not seem outrageous to think of constitutional meaning (even the original meaning of ambiguous provisions) as at least in part constituted by official practices (especially if the officials were members of the privileged "original" interpretive community) to which there was no serious constitutional objection. If that's right, then the fact that there was (1) no formal congressional approval; and (2) no formal or popular rebuke to either Washington or Hamilton for these actions; suggests that the actions you point to might have formed the basis for relatively stickey understandings of either the meaning of the clause or the proper balancing of pragmatic considerations regarding whether to enforce that clause stringently or otherwise. And that seems consistent with the thesis you're trying to undermine.

Posted by: anon | Nov 6, 2012 9:17:46 AM

I think it is an interesting issue; but whether history (or originalism) really provides the right answer is another question

Posted by: Thomas | Nov 6, 2012 4:22:09 AM

I think it's fair to say that we all need hugs.
Let's keep the comments on the merits please. I've deleted one other one that goes over my line.

Posted by: Dan Markel | Nov 5, 2012 10:05:42 PM

I have no idea who is right about the "unitary executive theory," but I'm quite certain that the author of this letter needs a hug.

Posted by: Prison Planet | Nov 5, 2012 9:33:02 PM

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