Model Continuity of Congress Statute

[Excerpt] Although, the reasoning of Chadha arguably extends to actions taken pursuant to this Model Statute, the facts of any litigation arising from this Model Statute are substantially different from the facts of Chadha. Unlike Chadha, all orders, resolutions, and votes made pursuant to this Model Statute are presented. Any litigation arising under this Model Statute will permit lower courts to take a fresh look at Chadha’s bicameralism rationale apart from the presentment issues, which are not at play under the terms of this statute

Model Continuity of Congress Statute

[Excerpt] Although, the reasoning of Chadha arguably extends to actions taken pursuant to this Model Statute, the facts of any litigation arising from this Model Statute are substantially different from the facts of Chadha. Unlike Chadha, all orders, resolutions, and votes made pursuant to this Model Statute are presented. Any litigation arising under this Model Statute will permit lower courts to take a fresh look at Chadha’s bicameralism rationale apart from the presentment issues, which are not at play under the terms of this statute

Model Continuity of Congress Statute

[Excerpt] Although, the reasoning of Chadha arguably extends to actions taken pursuant to this Model Statute, the facts of any litigation arising from this Model Statute are substantially different from the facts of Chadha. Unlike Chadha, all orders, resolutions, and votes made pursuant to this Model Statute are presented. Any litigation arising under this Model Statute will permit lower courts to take a fresh look at Chadha’s bicameralism rationale apart from the presentment issues, which are not at play under the terms of this statute

Model Continuity of Congress Statute

[Excerpt] Although, the reasoning of Chadha arguably extends to actions taken pursuant to this Model Statute, the facts of any litigation arising from this Model Statute are substantially different from the facts of Chadha. Unlike Chadha, all orders, resolutions, and votes made pursuant to this Model Statute are presented. Any litigation arising under this Model Statute will permit lower courts to take a fresh look at Chadha’s bicameralism rationale apart from the presentment issues, which are not at play under the terms of this statute

The Presidential Succession Act at 75 | A Defense of the Legislative “Officer” Succession Provisions

These remarks were delivered as part of the program entitled The Presidential Succession Act at 75: Praise It or Bury It?, which was held on April 6, 2022, and hosted by the Fordham University School of Law. The Presidential Succession Act sets out the presidential line of succession and other procedures for situations in which the president and vice president have both died, resigned, been removed, or become unable to discharge the presidency’s powers and duties. The Act also addresses succession scenarios before Inauguration Day. In light of the statute’s seventy-fifth anniversary, this program explored relevant history and analyzed whether reform to the statute is needed. In these remarks, Seth Barrett Tillman, an Associate Professor at the Maynooth University School of Law and Criminology, describes the benefits of keeping lawmakers in the presidential line of succession and argues that lawmakers are constitutionally eligible successors

Noncontemporaneous Lawmaking: Can the 110th Senate Enact a Bill Passed by the 109th House?

No abstract available for this item

Business Transactions and President Trump's 'Emoluments' Problem

Recently, it has been argued that the term “emoluments” — as used in the Constitution’s Foreign Emoluments Clause and Presidential Emoluments Clause — reaches any pecuniary advantage, benefit, or profit arising in connection with business transactions for value. There is good reason to doubt the correctness of this position

Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution's Incompatibility Clause

In a few months, We the People will go to the polls and elect the electors who will elect (or, at least, have an opportunity to elect) the next President of the United States. Short of an act of God or an act of war, it is more likely than not that the next President will be a sitting United States Senator. The expectation is that a Senator/President-elect resigns his or her legislative seat some time prior taking the presidential oath of office. It is widely believed in large and influential academic circles and among the educated public generally that the Constitution requires this result by expressly precluding joint simultaneous Legislative-Executive Branch office holding. I respectfully dissent. I believe the conventional view is mistaken as a matter of the original public meaning of the Constitution. Although the idea of a sitting Senator holding the office of President is somewhat counter-intuitive, this is one example of the dangers of unexamined intuitions. True, the Constitution does preclude joint Legislative Branch-Executive Branch service. But for incompatibility purposes, the President is not part of the Executive Branch; rather, the (elected) President presides over it, as opposed to (appointed) Executive Branch officers - which are under it. Therefore, a sitting Senator can keep his or her seat while serving as President. In addition to its primary point, that the President and Vice President are not subject to the Incompatibility Clause, this article makes a few other (subsidiary) points, including: (1) that "officers of the United States" is distinguishable from "officers under the United States" - the latter is slightly broader, and includes non-presiding legislative officers (along with contractors, low level employees, and special agents in irregular service to the federal government); (2) neither "officers of the United States" nor "officers under the United States" include the President or Vice President; (3) the Ineligibility Clause (a/k/a the Emoluments Clause) prevents members of Congress from being appointed to office (per Article I, Section 6, Clause 2), but does not prevent members from being elected to the Presidency or Vice Presidency or to Congress; (4) Senatorial disqualification following impeachment only extends to appointed office, not elected office (member of Congress, President, or Vice President - except possibly where the Vice President is appointed per the Twenty Fifth Amendment); (5) offices created per the Appointments Clause can only be created by statute, not by treaty; (6) the Foreign Emoluments Clause does not apply to the President and Vice President (see Article I, Section 9, Clause 8); (7) a President and Vice President even if running for re-election are eligible to serve as an elector under the Elector Incompatibility Clause (see Article II, Section 1, Clause 2); (8) legislative officer succession poses no constitutional difficulties per the Succession Clause; (9) the President is only subject to the Article II oath, but not the Article VI oath; and (10) the President and Vice President are holders of a "public trust" per the Article VI Religious Test Clause

Six Puzzles for Professor Akhil Amar

The Constitution of 1787 uses a variety of language in regard to "office" and "officer." It makes use of several variants on "office under the United States," and it also uses "officer of the United States," "office under the Authority of the United States," and, sometimes, just "officer" without any modifying terminology. Why did the Framers make these stylistic choices (if a choice it was)? (And what was the Constitution referring to in Article VI's obscure "public trust under the United States" language?) From time to time commentators have suggested answers. One such view was put forward in 1995 by Professors Akhil and Vikram Amar. They opined that each of these categories were indistinguishable: each category referred to Executive Branch and Judicial Branch officers, including the President (and, apparently, the Vice President). I contest their atextual position. If you are interested in the "officers" dispute, or if you just want to know where the bodies are buried...this paper is for you. "Six Puzzles for Professor Akhil Amar." Sometimes the title says all you really need to know