Seth Barrett Tillman (United States District Court, PA) has posted An 'Utterly Implausible' Interpretation of the Constitution: A Reply to Professor Steven G. Calabresi (University of Pennsylvania Law Review PENNumbra, Vol. 157, No. 6, 2008) on SSRN. Here is the abstract:
The Incompatibility Clause bars Representatives and Senators from "holding any office under the United States." In my opening paper, I argued that the phrase "office under the United States" is a term of art referring to statutory or appointed officers, not to the President. In short, the Incompatibility Clause does not bar joint Senate-Presidential office-holding; it bars Senators from working for the President (or being appointed by the President), it does not bar a Senator from being President.
Professor Steven G. Calabresi disagrees. He states that my position is "utterly implausible." This paper is my response to Professor Calabresi. The focus of our exchange relates to the Oaths and Affirmations Clause, the Impeachments Clause, and the Commissions Clause. Professor Calabresi will write a rejoinder ending our 4-part exchange.
Here are links to the full exchange:
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 *1-33 (forthcoming 2008), available at papers.ssrn.com/sol3/papers.
cfm?abstract_id=1099355.
Seth Barrett Tillman, Why President-elect McCain/Obama may Keep his Senate Seat After Assuming the Presidency, 157 U. Pa. L. Rev. PENNumbra *1-4 (forthcoming 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1292359 .
Professor Steven G. Calabresi, Response, Does the Incompatibility Clause Apply to the President?, 157 U. Pa. L. Rev. PENNumbra*1-4 (forthcoming 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1294671 .
Seth Barrett Tillman, An “Utterly Implausible” Interpretation of the Constitution: A Reply to Professor Steven G. Calabresi, 157 U. Pa. L. Rev. PENNumbra *1-5 (forthcoming 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1292334 .
Professor Steven G. Calabresi, Rebuttal, A Term of Art or the Artful Reading of Terms?, 157 U. Pa. L. Rev. PENNumbra *1-8 (forthcoming 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1294671 .
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