Can a Marylander be the Senator from California?

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Yesterday I noted the concern that Laphonza Butler—sworn in earlier today as a senator from California—remains under the Constitution a citizen of Maryland, not an “inhabitant” of California as Article I requires. (There are also arguments that she was not yet a California “elector” when appointed, as state law may require.) Because the U.S. Senate is “the Judge of the Elections, Returns and Qualifications of its own Members” under Art. I, § 5, cl. 1, it’s also the only body that could declare Butler ineligible to serve.

So must it? Seth Tillman, Josh Blackman, and Mike Ramsey have argued that it doesn’t really matter—that it’s perfectly fine for this Marylander to represent California in the Senate. The Seventeenth Amendment provides for two routes to a Senate seat, being “elected by the people” or receiving a “temporary appointment[]” from the state executive. Because Article I’s residence requirement applies to a senator “when elected,” they argue that it’s wholly inapplicable to appointments—and that Gov. Newsom could appoint someone from Alaska or New York if he wants to.

I’d discussed this argument briefly in my prior post, but it deserves response at greater length, especially as it seems to have persuaded some eminent folks. Even so, just as there’s a danger in failing to read constitutional text carefully, there’s also a danger of unconsciously importing a degree of precision that might not have been perceived at the time. The crucial “when elected” language comes, not from the Seventeenth Amendment (which speaks of senators “elected by the people”), but from the original Constitution. That text used terms such as “elected,” “appointed,” and “chosen” in occasionally overlapping ways—sometimes distinct, sometimes coextensive. Most importantly, that’s how such words were actually read, whether in the Philadelphia Convention, in the Federalist, or in the early-nineteenth-century Senate, which in 1809 actually decided a contest on this issue in favor of requiring residence. By contrast, drawing new lines between election and appointment would make a hash of a variety of other constitutional provisions.

Text. Here’s what Article I says:

Section. 2. [1]The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

[2]No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

* * *

Section. 3. [1]The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

[2]* * * if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

[3]No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

As I argued yesterday, “when elected” here uses the broad meaning of election, akin to “when chosen.” (Think of a jury instruction given “at the defendant’s election,” or of “a power of election” or “power of appointment” in private law.) This portion of Article I doesn’t strictly differentiate between “elected” and “chosen.” Representatives and senators are “chosen,” even though the former are picked in elections by the people at large and the latter are picked when a state legislature adopts a bill or resolution. Ramsey argues that a “selection by the state legislature is an election (by a vote of the members of the legislature).” But having a majority of members vote in favor of a resolution naming a single senator—either asynchronously, by two separate houses that will have to agree, or in a unicameral body, like Pennsylvania’s Founding-era General Assembly—doesn’t look anything like being “elected” in a multi-candidate election. The “when elected” requirement for senators isn’t keyed to when the votes are tallied in either house, but when the bill or resolution actually takes effect: that is, whenever an official choice has been made.

In fact, while it often differentiates appointed officers from elected legislators, the Constitution sometimes describes precisely this kind of legislative selection as a form of appointment. For example, presidential electors might be picked by popular vote (as they usually are today), or they might be listed on a slate chosen by a state legislature, just as senators were. But Article II, § 1, cl. 2 includes a legislature’s naming a slate of electors as a process of appointment:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress * * * .

And the Constitution elsewhere envisions “Appointment[s]” made by a multimember body, as under Article II, § 2, cl. 2:

* * * [T]he Congress may by Law vest the Appointment of such inferior Officers, as they think proper, * * * in the Courts of Law * * * .

So it’s far from clear that “when elected” in Article I is in contradistinction to senators’ being chosen via “temporary Appointments”—or that this language means anything over and above when selected or when chosen. In fact, that’s roughly how Noah Webster defined ‘elect’ to mean ‘select’ in 1828:

1. Properly, to pick out; to select from among two or more, that which is preferred. Hence,

2. To select or take for an office or employment; to choose from among a number; to select or manifest preference by vote or designation; as, to elect a representative by ballot or viva voce; to elect a president or governor.

3. In theology, to designate, choose or select as an object of mercy or favor.

4. To choose; to prefer; to determine in favor of.

Drafting and interpretive history. Far more important than these generic dictionary definitions is how people actually did read the language in question. Consider the drafting history. As of August 6, 1787, the Committee of Detail’s draft concerning the Senate read as follows (2 Farrand at 177, 179):

Sect. 1. The Senate of the United States shall be chosen by the Legislatures of the several States. Each Legislature shall chuse two members. Vacancies may be supplied by the Executive until the next meeting of the Legislature. Each member shall have one vote.

* * *

Sect. 3. Every member of the Senate shall be of the age of thirty years at least; shall have been a citizen in the United States for at least four years before his election; and shall be, at the time of his election, a resident of the State for which he shall be chosen.

This language doesn’t say anything about “appointment”; vacancies are to be “supplied by the Executive.” But there’s little reason to suspect that these Executive-supplied senators were any less subject to the residence requirements—and especially the requirements of citizenship, which applied to a senator based on the time of “his election.” To read “election” as excluding replacement senators would exempt them from any need to be citizens at all! Yet this language was accepted by a number of delegates who simultaneously expressed grave concern about “the danger of admitting strangers into our public Councils” (2 Farrand at 235), and who that very day raised the citizenship requirement from four years to nine (id. at 228, 239). (Tillman suggests that the Framers might have wanted to allow for the easy selection of replacement senators who were already near the seat of government, even if they hailed from elsewhere. But I couldn’t find any indications of this concern in the debates.)

Three days later, this language was expanded to “Vacancies happening by refusals to accept, resignations or otherwise may be supplied by the Legislature of the State in the representation of which such vacancies may happen, or by the Executive thereof until the next meeting of the Legislature” (id. at 227, 232). A legislature-supplied replacement and an executive-supplied replacement were treated as being on an equal footing—yet if Ramsey is right, the former would have undergone an election while the latter has not. This provision was sent to the Committee of Style (id. at 566), which reframed the qualifications provisions for the House and Senate and produced the “temporary appointments” / “when elected” language (id. at 591). But there’s little reason to think that by doing so it lifted any residence requirement from replacement senators, especially if “the time of his election” would already have applied to them under the old language.

Nor do early interpreters of the Constitution seem to have distinguished “Appointments” from being “elected” in this way. For example, Federalist 62 repeatedly discusses “the appointment of senators by the State legislatures“; it describes wholly interchangeably “the term for which [these senators] are to be elected” and “the duration of their appointment.” (See Cooke ed. at 415–16, 418.) Maybe some Founders used election and appointment as fundamentally disjoint concepts, such that one term could never be used in place of the other—but, apparently, not James Madison.

Nor did the Senate itself. The earliest construction I’ve been able to find (suggested by Derek Muller) goes squarely the other way. In 1809, Stanley Griswold was appointed by the governor of Ohio to fill a Senate vacancy. But he had lived in the state for less than a year. Before the Fourteenth Amendment, state citizenship wasn’t immediately triggered by domicile, and his status might have depended on a longer residence period under state law. A Senate committee investigated the issue, which could only have been an issue if appointees were, in fact, required to be “inhabitant[s]” of the states they represented. The committee concluded that Ohio’s “term of residence or other qualifications necessary to entitle a person to become an inhabitant of the said State are not, so far as the committee have been able to discover, defined either by the constitution or laws of said State.” Thus, “the executive who made the appointment having certified that said Stanley Griswold is a citizen of said State,” the committee inferred that state law had been satisfied and deemed Griswold eligible to serve. (See Compilation of Sen. Election Cases from 1789 to 1913, S. Doc. No. 1036, 62d Cong., 3d Sess., 1918.) In other words, the Senate as early as 1809 acted on the understanding that “when elected” didn’t exclude appointees.

Context. The other problem with the no-appointees reading is that it makes a hash of other provisions of the Constitution. Consider Article I, § 5, cl. 1:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members * * * .

If two people had shown up in D.C. today, each named Laphonza Butler and claiming to be senators from California, would the Senate really have been unable to judge which one (if either) Gov. Newsom had selected? After all, both might have been equally qualified for the Senate, of the appropriate age and citizenship and so on, and neither would have had any “Returns” to examine. Reading “Elections” here to include “temporary Appointments” is the only way to avoid absurdity.

Or consider Art. I, § 6, cl. 2:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time . . .

On the elected-only reading, it’d be perfectly legal for President Biden to buy Butler off with a plum appointment, because there’d be no “Time for which [s]he was elected.”

Or consider the analogous language concerning presidential succession, in Art. II, § 1, cl. 6–7:

[6]In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

[7]The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Set the Twenty-Fifth Amendment aside and assume that this language were still in effect. If some disaster caused the Secretary of Agriculture to act as President, he wouldn’t have been “elected” to the office within the meaning of Article II, because he could only act until a President is elected. But on the Tillman-Blackman-Ramsey reading, that also means that the term during which he acts couldn’t possibly be “the Period for which he shall have been elected,” meaning that Congress would be free to zero out his salary for his temerity in vetoing any bills, or that the states would be free to pay him off for steering patronage their way.

The point isn’t that such readings are unwise, that they’re bad policy, etc. The point is that they appear to be mistaken—that they fail to track how legal texts regularly function. The meaning of “temporary Appointments” and “when elected” depends on whichever degree of flexibility the terms had in contemporary language, not any idealized precision that might seem natural to us as modern readers. Article II’s emoluments language is phrased in terms of elections because that’s how Presidents standardly come to the office; but the phrasing doesn’t render the provision inapplicable to someone else who, under another provision of equal authority, legally steps into the President’s shoes. For the same reasons, the Senate residence requirement’s phrasing in terms of elections doesn’t rule out its lawful application to an appointee who, under another provision of equal authority, legally steps into the shoes of a departed senator.

To my mind, the Senate got it right in 1809; the residence requirement applies to appointees; the “when elected” language uses the broad rather than narrow meaning of election; and any argument to the contrary has a heavy burden to bear. And Butler is, alas, ineligible to serve.

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