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Thursday, February 08, 2024

Is the Presidency an "Office Under the United States"? A View from "The West Wing" [UPDATED]

Writing on the Volokh Conspiracy, my good friend Steve Calabresi seeks to explain why the presidency is not an "office under the Untied States," and thus not subject to Section 3 of the Fourteenth Amendment. Let me suggest that his argument may depend on a misreading of the Incompatibility Clause.

According to Calabresi,

If the presidency is an "office *** under the United States" that covers Donald Trump under Section 3, of the Fourteenth Amendment, then it has to also be an "Office under the United States" for the purposes of the Incompatibility Clause, which bars Members of Congress from holding any "Office under the United States."  That would mean that the Presidential Succession Act of 1947 is unconstitutional because it allows either the Speaker of the House of Representatives or the President Pro Tempore of the Senate to serve simultaneously as a Member of either House and to hold the Presidency in the absence of both a President and a Vice President, which Presidency is wrongly said to be an "Office under the United States". (All boldface original.)

But the Incompatibility Clause only says that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”

Doesn’t that simply mean that the Speaker or Senate President Pro Tempore would have to resign from the legislature in order to assume the presidency (as the statute requires)? That certainly makes more sense than assuming that one person could continue to be both president and Speaker, which is what Calabresi seems to be saying.

Thus, the presidency could be an “office under the United States” and the Presidential Succession Act would be perfectly constitutional, although the Speaker or President Pro Tempore would be put to a tough choice.

This observation was the plot line of the 88th episode of The West Wing, in 2003, when President Bartlet invoked the Twenty-Fight Amendment to suspend himself from office because of his reaction to his daughter’s kidnapping. The Vice President had previously resigned in a sex scandal, so the Speaker of the House (played by John Goodman) had to step in as acting president.

But here’s the point: The Speaker resigned from Congress just to assume the temporary role of acting president, in order to comply with the Incompatibility Clause, which he did for the good of the country.

So over twenty years ago, a technical advisor in Hollywood recognized that the presidency is an “office under the United States” and reconciled that with both the Incompatibility Clause and the Presidential Succession Act.

I have no strong opinion about this, and have written to Steve Calabresi for his reaction, but Jed Bartlet is a damn good authority.

UPDATE: Prof. Calabresi has responded:

I have considered the possibility that the Speaker might resign to eliminate incompatibility, but if he did he would no longer be able to act as President.  Under the 25th amendment, the Vice President actually becomes President when that job is vacant, but the Speaker is only Acting President ex officio of his being Speaker, and, indeed, his first obligation as Acting President under the 25th Amendment is to nominate a Vice President who, when confirmed by both Houses of Congress will then become President displacing the Speaker acting as President who nominated him.  I think the cleaner conclusion, which is supported by the legislative history of the 1792 presidential succession act is that the President is not an “Officer under the United States!

UPDATE: Here is President Bartlet handing over authority to now-ex Speaker of the House Walken:


Posted by Steve Lubet on February 8, 2024 at 08:16 PM | Permalink


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