The Ineligibility or Sinecure Clause (Article I, Part 6, Clause 2) states:
No Senator or Consultant shall, through the Time for which he was elected, be appointed to any civil Workplace beneath the Authority of the USA, which shall have been created, or the Emoluments whereof shall have been elevated throughout such time . . . . (emphasis added).
Right here and elsewhere, the Structure of 1788 distinguishes “appoint” from “elect.” Whether or not or not contemporaneous in style utilization did that too is a completely completely different query—simply as authorized utilization generally differs from in style utilization.
For a special standpoint, see Roger Parloff, ‘What Justice Scalia Thought About Whether or not 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 right, if appoint and elect are mainly synonyms throughout constitutional provisions, then a strategic Congress might increase the President’s (or Vice President’s) wage, and if Congress did so, then a Senator with 2 or 4 years remaining on his/her time period can be barred from being elected/appointed to the presidency and vice presidency. In different phrases, an incumbent President in search of re-election, working in tandem with a cooperative Congress, might bar all senators (with 2 or 4 years remaining on their time period) from the minority occasion, by elevating the President’s wage $1! And so they say the Blackman/Tillman place has odd, sudden, undesirable penalties? Furthermore, this level shouldn’t be new. It has been within the literature since circa 2009. See Seth Barrett Tillman, Why Our Subsequent President Might Hold His or Her Senate Seat: A Conjecture on the Structure’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 107, 134–36 (2009).
Parloff would possibly attempt to argue that the Sinecure Clause doesn’t apply to the presidency, as a result of the presidency shouldn’t be a “Civil Office under Authority of the United States.” That will be odd. As we perceive it, Parloff’s place is that the President is an “Officer of the United States” and the presidency is an “Office under the United States.” Why would not the presidency even be a “Civil Office under Authority of the United States”? And we now have addressed at size why the President shouldn’t be a army official. It could appear to comply with that beneath Parloff’s place, the presidency can be thought of an appointed place beneath the Sinecure Clause. Because of this, all of those detrimental penalties inhere to his place.
In a current Volokh Conspiracy put up, we wrote:
We’ve little doubt there can be extra rushed and flawed entries within the debate. Critics with little or no experience within the area will discover one thing, something, to show that we’re mistaken. Little question these critics can be unfamiliar with our full physique of scholarship, which effectively exceeds a thousand pages. Critics will assault positions we by no means took, and ignore the positions we now have truly taken. Critics can be unfamiliar with the correct context of sources from the 18th and nineteenth centuries. And critics will method their conclusion with absolute certitude that they’re proper and Tillman/Blackman are mistaken. Belief us, we have seen all of it earlier than. We might make an inventory of people that have stated we had been mistaken, after which later needed to retract or extra. The listing retains rising.
Over the following two months or so, the USA Supreme Court docket is probably going to offer some decision to a number of of those contentious points. And, we count on that quite a lot of will attempt to depart a mark on this debate within the close to time period and previous to judicial decision. They may put up new “research” on the final minute realizing full effectively that those that are able to verify the accuracy of newly reported “research” can have little or no time to take action earlier than the Supreme Court docket decides this case. And, for a number of, that’s not a bug, it’s the chief characteristic.
If and the way we reply can be a operate of what time and different constraints we face on this remaining, pivotal interval. Our candid message to you—the reader—is to method such new, late-breaking entries within the debate with some warning.