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IN TRUMP V. ANDERSON, THE RESPONDENTS' THEORY WOULD RENDER UNCONSTITUTIONAL
EVERY SPEAKER AND PRESIDENT PRO TEMPORE SINCE 1789, AS WELL AS PRESIDENT GRANT'S
VP AND PRESIDENTIAL CANDIDATE GEORGE MCGOVERN
JUSTICE SCALIA ERRED BECAUSE THERE ARE NO “OFFICERS OF THE UNITED STATES”
APPOINTED OUTSIDE ARTICLE II, SECTION II.
Josh Blackman | 2.4.2024 4:01 PM
[This post is co-authored with Professor Seth Barrett Tillman]
Since the outset of the Section 3 litigation, those seeking to disqualify Trump
from the ballot have made two primary arguments concerning the Appointments
Clause. First, they argued that whatever the phrase "Officers of the United
States" meant in the Appointments Clause, it had a different meaning in Section
3. Second, they acknowledged that the President obviously does not appoint
himself, but countered that the Appointments Clause does not define who are the
"Officers of the United States." In the lower courts, the Respondents never
attempted to discuss whether there are some "Officers of the United States" who
are not referenced in the Appointments Clause. Indeed, we saw no need to address
this point in our amicus brief, filed on January 9, 2024.
On appeal to the Supreme Court, the Colorado voters in Trump v. Anderson have
pivoted to a new strategy. They now argue that the President, Vice President,
Speaker of the House, and Senate President Pro Tempore are all appointed
"Officers of the United States." Resp. Br. at 40 ("The Constitution 'otherwise
provide[s]' for the 'appointment' of the President and Vice President by the
electoral college, and the Speaker of the House and President pro tempore of the
Senate by Congress.").
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We can take a good guess why they have suddenly taken this position. No, it is
not because a journalist at Lawfare and two attorneys who have experience in
corpus linguistics suddenly discovered, after more than two centuries, the
unifying theory of the Appointments Clause. Rather, it is the Scalia letter!
Yes, the letter that Justice Scalia wrote to Tillman in 2014. We published that
letter in an article nearly a year ago. We didn't have to publish the letter. It
was a private correspondence. No one would have ever known if we didn't publish
it. But we published it quite intentionally, in part, to demonstrate that even a
legal giant, like Justice Scalia, can make a mistake. And we published it
because, as scholars, we have a duty to pursue the truth.
Would you have published a private correspondence from Justice Scalia that was
in tension with your own views?
After Noel Canning was decided, Justice Scalia responded to a letter by Tillman,
and stated that the President, Vice President, Speaker of the House, and Senate
President Pro Tempore are "officers of the United States" whose appointments are
not provided for in the Appointments Clause. And wouldn't you know it? The
Respondents have adopted exactly that position. Blackman told CNN that arguments
based on the Scalia letter "have substantial problems." In this post, we will
illustrate some of those problems. (We flagged these problems to the Court in
paragraph 13 of our now-denied motion for leave to participate in oral
arguments.)
One such problem is that the Respondents' theory would render unconstitutional
every Speaker and President Pro Tempore since 1789, as well President Grant's
Vice President and Presidential Candidate George McGovern. For that reason, and
others, we maintain that Justice Scalia erred, because there are no "Officers of
the United States" appointed outside Article II, Section 2. Instead, Article II,
Section 2 is the exclusive means by which "officer of the United States"
positions are filled. And this understanding of the Constitution's text is the
only view consistent with Supreme Court precedent. See, e.g., Free Enter. Fund
v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 497–98 (2010) (explaining that
"[t]he people do not vote for the 'Officers of the United States.'" (first
quoting U.S. Const. art. II, § 2, cl. 2, and then citing Federalist No. 72
(Alexander Hamilton))). Respondents "offer no account [or theory] of how their
argument fits within the landscape of [the Court's] case law." Haaland v.
Brackeen, 599 U.S. 255, 279 (2023).
PROBLEMS WITH THE INCOMPATIBILITY CLAUSE
The Incompatibility Clause provides, "no Person holding any Office under the
United States, shall be a Member of either House during his Continuance in
Office." U.S. Const. Art. I, § 6. The Anderson Respondents, citing Justice
Scalia, argue that the Speaker and Senate President Pro Tempore are "Officers of
the United States." The Respondents also argue that there is no difference
between an "Officer of the United States" and an "Office under the United
States." Resp. Br. at 36 (rejecting "Trump's linguistic hair-splitting between
'officer of' and 'office under' the United States.").
Do you see the problem? Did the Respondents even see the problem? If Justice
Scalia and the Respondents are correct, members of Congress cannot serve as
Speakers and Senate Presidents Pro Tempore, because those positions are "Offices
under the United States." But every single presiding officer since 1789 has been
a member of Congress. (Indeed, many believe the presiding officers must be
members.) In the U.K.'s parliament (and in its British and English predecessor
parliaments), the Speaker of the House of Commons was always a member. Under the
view put forward by Respondents, and their amici, every presiding officer of
Congress in American history has been unconstitutional.
Perhaps the Respondents would pivot to say that the Speaker and Senate President
Pro Tempore are "officers of the United States," but do not hold "Offices under
the United State." But how? That "hair-splitting" distinction would undermine
their entire case. We suspect that, at the podium, Respondents will have to
abandon the argument that the Speaker and Senate President Pro Tempore are
"Officers of the United States." And if so, they will have to disagree with
Justice Scalia—just as we disagree with Justice Scalia.
The Speaker and Senate President Pro Tempore are "officers" chosen by their
respective houses, but they are not "Officers of the United States," and they do
not hold "Office under the United States." The Petitioner partially made this
point in his brief. "Article I requires the House and Senate to choose their
'officers,' but these legislative officers are not 'officers of the United
States' because they are not appointed or commissioned by the President, nor are
they subject to impeachment." Petr. Br. at 25. The Petitioners should extend
this argument and also state that the Speaker and Senate President Pro Tempore
also do not hold "Office under the United States."
Respondents expressed concern about an "astonishing" possibility in which the
President could hold a seat in Congress, but did not even realize that their
position makes it impossible for a Representative to be Speaker! See Anderson
Respondents' Opposition to Tillman at 2.
Justice Scalia erred in asserting that congressional presiding officers are
"officers of the United States." Regardless of how the Court rules on
Petitioner's case, the argument that Respondent advances about the Speaker and
Senate President Pro Tempore must be rejected. Respondents' position would also
render the Presidential Succession Act of 1947 unconstitutional. The better view
is that the Speaker and Senate President Pro Tempore are "officers" but not
"officers of the United States" as that phrase is used in the Constitution. See
Josh Blackman & Seth Barrett Tillman, Offices and Officers of the Constitution,
Part II: The Four Approaches, 61 South Texas Law Review 321, 421 (2022)
(concluding that the Speaker and Senate President Pro Tempore are "Officers" for
purposes of the Succession Clause, and can succeed to the presidency.)
PROBLEMS WITH THE SINECURE CLAUSE—WILSON, BARKLEY, AND MCGOVERN
The Sinecure Clause, also known as the Ineligibility Clause, provides: "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." U.S. Const. Art. I, § 6. As a threshold matter, this
provision expressly contrasts between Senators and Representatives, who are
elected, and "any civil Office[s] under the Authority of the United States,"
which are appointed. The corpus linguistics study which purports to demonstrate
that elected and appointed have the same meaning didn't actually mention the one
provision of the Constitution that uses both terms. We'll come back to that
point shortly.
With the Sinecure Clause, a member of Congress cannot be "appointed" to a "civil
Office under the Authority of the United States," if Congress increased the
compensation for that position during the member's term. There is some argument
that Senator Hugo Black was ineligible to be appointed to the Supreme Court
because of this provision. In modern times, the Senate has employed the
so-called "Saxbe fix": in circumstances where the Sinecure Clause would
otherwise block a preferred appointment, because the compensation had been
increased, the salary is subsequently decreased before the appointment is made.
This "fix" was used when Senator Hillary Clinton was nominated as Secretary of
State. (We express no opinion here on whether the Saxbe fix comports with the
Sinecure Clause.) Critically, the salary must be reduced before the appointment
is made. But absent a reduction of the compensation, the Senator would be
ineligible for an appointment to any such "civil Office under the Authority of
the United States" in which the salary was raised during the senator's elected
term.
***
What we are about to write has not been previously discussed in the literature
or in the litigation.
In 1871, Senator Henry Wilson of Massachusetts was elected to a six-year term in
the Senate. During the term for which Senator Henry Wilson was elected, in 1873,
the Vice President's salary was increased. 42nd Cong. Sess. III, ch. 224-226, 17
Stat. 485 (1873). Also during that term, in 1873, Wilson was inaugurated as Vice
President under President Grant.
The Respondents argue that the Vice President is an "Officer of the United
States." And we think they would have to argue that the Vice President is also a
"Civil Office under the Authority of the United States." And, relying on a
corpus linguistics study, the Respondents insist that the President, as well as
the Vice President, are appointed. Resp. Br. at 40. If these three premises are
correct, then Wilson was ineligible for the Vice Presidency in 1873.
To preempt a predictable, but wrong, argument, even before the Seventeenth
Amendment, Senators chosen by state legislatures were still elected. Article I,
Section 3, refers to the "election" of Senators by the state legislatures and
provides that Senators are "elected." Article I Section 4 refers to the "holding
of Elections for Senators and Representatives," and Article I Section 5 refers
to the "Elections" of "Members" (which includes Senators and Representatives).
By contrast, state executives can make "temporary Appointments" to fill Senate
vacancies. Again, the Constitution does not treat the concepts of election and
appointment as equivalent. It is an open question whether a temporary senatorial
appointment is "elected" for purposes of the Sinecure Clause. We think the
answer is "no." In a draft article, we discuss the status of Representative
Prentiss Marsh Brown of Michigan, who was appointed to the Senate to fill a
vacancy. During a six-week span, Brown received a Senate salary that had been
increased during the time he had been elected to the House
Vice President Wilson's ineligibility would have been news to President Grant,
and the entire American people, and this was only five years after the
Fourteenth Amendment was ratified. Moreover, Democrats, including Southern
Democrats, would have had every incentive to oppose another Republican
administration. Where were any objections raised? Yet, the Respondents now
assert that it is somehow clear that the Vice President was and is an appointed
officer "of" and "under" the United States. At one time, Justice Scalia thought
this too. But we have to ask ourselves: Does this view make any sense? Is this
view consistent with long-standing practice which no one objected to when there
was an opportunity to do so? The Respondents and their Amici put a lot of weight
in the views of Ulysses S. Grant. But here, Grant's action suggests that he did
not view the Vice President as an appointed "Office under the Authority of the
United States." This historical incident provides some support for the
conclusion that the disqualification element of Section 3 does not reach the
presidency.
Wilson is not alone. Senator Alben Barkley of Kentucky was elected to a senate
term that began in 1945. Barkley was a sitting Senator when the Vice President's
salary was increased. Act of January 19, 1949, c. 2, §1(a), 63 Stat. 4. Barkley
was inaugurated as President Truman's Vice President in 1949. If Respondents are
right, Barkley was also ineligible for the Vice Presidency in 1949. When did
anyone argue that the Vice President held an appointed office of or under the
United States? Can Respondents cite any case, or even any single law review
article from before 2021, making that point? See Harold M. Hyman & Morton
Borden, Two Generations of Bayards Debate the Question: Are Congressmen Civil
Officers?, 5 Delaware History 225, 229 n.18 (1953) ("Since the Blount
impeachment decided that any elected official is not a civil officer, Bayard was
wrong in defining the presidential office as a civil office." (emphasis added)).
As far as we know, Tom Merrill was one of the few scholars who addressed this
issue, and he wrote that members of Congress were appointed "Officers of the
United States" whose appointments were not provided for in the Appointments
Clause. He did not address the President. (Professor Chad Squitieri of Catholic
University responds to Merrill in his article, Towards Nondelegation Doctrines
(pp. 1262-63)). Yet the Respondents now assert just that: that the Vice
President is an officer of and under the United States, as if that position were
obviously correct.
Finally, Senator George McGovern of South Dakota was elected to a term that
began in January 1969. After his term began, President Nixon's salary was
increased. See Act of Jan. 17, 1969, Pub. L. No. 91-1, § 1, 83 Stat. 3. In 1972,
McGovern was the Democratic nominee for President. If Respondents' position is
correct, then McGovern was ineligible for the Presidency in 1972. If only Nixon
and the other candidates in the Democratic Party Primaries had known that any
one of them could have knocked out his rival on Sinecure Clause grounds! Tillman
wrote about the McGovern example nearly fifteen years ago. See 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 107,
135 n.70 (2009).
Respondents now argue, and do so for the first time before the Supreme Court of
the United States, that the President, Vice President, Speaker of the House, and
Senate President Pro Tempore are "officers of the United States" whose
appointments are not provided for in the Appointments Clause. We doubt the
Respondents recognized these problems under the Incompatibility and Sinecure
Clauses when they wrote their brief.
Indeed, the Respondents argued that the presidency is "both" a civilian and
military position. Resp. Br. at 41. They have made the same claim in regard to
the vice presidency. Id. They cannot now claim the President and Vice President
would be exempt from the Sinecure Clause's "civil Office" language.
The Respondents worry about the "astonishing" consequences of our position, but
fail to see the much more significant and obvious problems resulting from
theirs. It is not difficult to imagine that strategic salary increases will be
used to render potential presidential candidates in the Senate ineligible.
Imagine that in January 2007, the lame-duck Republican majority in Congress
voted to increase the President's salary, perhaps through budget reconciliation.
If the Respondents are correct, then Senators Barack Obama and Hillary Clinton
both could have been made ineligible for the presidency in 2008. (And there is
no guarantee that a Saxbe fix would have been approved for them.)
Respondents' tinkering with the meaning of "Office under the Authority of the
United States" and other related disqualification elements of the Constitution
would have staggering consequences.
If the Respondents now take the position that the Speaker and Senate President
Pro Tempore are not "Officers of the United States," but the President and Vice
President are "Officers of the United States," then they will have rejected
their announced position, and they will have rejected the position in Justice
Scalia's letter. This double-rejection would demonstrate that the Respondents
have no principled way to understand or distinguish what provisions of the
Constitution outside the Article II, Section 2 fill "Officer of the United
States" positions and what provisions do not fill such positions. How can they
in a principled manner distinguish the House and Senate Officers Clauses from
Article II and Amendment XII processes for filling the presidency and vice
presidency? In the words of Haaland v. Brackeen, the Respondents have no theory
which explains how their approach applies in other contexts.
THE PRESIDENT'S APPOINTMENT IS NOT PROVIDED FOR IN ARTICLE II
The Principal Officers Appointments Clause provides, in whole:
> [The President] shall appoint Ambassadors, other public Ministers and Consuls,
> Judges of the supreme Court, and all other Officers of the United States,
> whose Appointments are not herein otherwise provided for, and which shall be
> established by Law . . . .
We explained in a recent post why the President is not an "Officer of the United
States" whose appointment is provided for in Article II. We won't rehash those
arguments here. Rather, we highlight an omission in the Respondents' brief: they
omitted the key phrase "and which shall be established by Law."
> Appointments Clause: This clause says the President "shall appoint" certain
> specified officers and "all other Officers of the United States, whose
> Appointments are not herein otherwise provided for[.]" U.S. Const. art. II, §
> 2 (emphasis added). Resp. Br. at 40.
The period they inserted in brackets elided over the key requirement that
whoever the "Officers of the United States" are, those positions must be
established by law—that is, by statute. See, e.g., Office of Pers. Mgmt. v.
Richmond, 496 U.S. 414, 424 (1990) (Kennedy, J.) ("Money may be paid out only
through an appropriation made by law; in other words, the payment of money from
the Treasury must be authorized by a statute."). At the Constitutional
Convention, during the drafting process, the phrase "and which shall be
established by law" was expressly added after other provisions of the
Appointments Clause were already drafted. This drafting history underscores
again that "Officers of the United States" are appointed. Part III at 387-390.
(Likewise, the drafting history of the Impeachment Clause—contra Sam Bray—shows
our position about "Officers of the United States" is reflected in the "legal
drafting culture of the late eighteenth" century. Part III at 364-65.)
We agree that in common usage, there is overlap between appointed and elected.
But the Constitution refers to the process by which the President and Vice
President are chosen as an election, and he is voted for by ballot:
* Art. II, s. 1, cl. 1: President and Vice President are "elected"
* Art. II, s. 1, cl. 3: Electors "vote by Ballot"
* Art. II, s. 1, cl. 3: "House chuse[s]" President "by ballot," Senate
"chuse[s]" Vice President "by Ballot"
* Art. II, s. 1, cl. 6: "President shall be elected."
* Art. II, s. 1, cl. 7: "President shall have been elected"
The Constitution does not use the language of "appoint" or "appointment" when
discussing how the President is "chosen." To the contrary, two of the three
elements of the standard Article II, Section 2 appointments process concern
actions taken by the President: the President nominates "Officers of the United
States," and after the Senate provides advice and consent, the President
"appoints" Officers of the United States." (And then, after the appointment, the
President commissions the "Officer of the United States" who he had appointed.)
The Constitution does not provide "otherwise" that the President and Vice
President are themselves appointed officers. There is no such text in the
Constitution. And, more importantly, those positions, that is the presidency and
vice presidency, are established by the Constitution, and not "established by
law," which means "by statute."
Moreover, there is authority from the early Republic to support our position.
During the First Congress, Representative Thomas Tucker distinguished the
Constitution's use of appoint from elect in regard to how those terms are used
in the Constitution, as opposed to popular usage. A Philadelphia newspaper from
January 1791 reported that congressional debate.
> Mr. Tucker strengthened the remark made by Mr. Sedgwick, by observing that the
> word appoint and not elect was made use of in that part of the
> Constitution;—that the use of the first was generally used to express a choice
> made by a small number and the latter a more general choice. The States, he
> observed, had indubitably the right to appoint the mode, and has exercised the
> power given to them by the constitution in several ways.
Philadelphia, Jan. 25. House of Representatives of the United States. Friday,
January 14, General Advertiser (Philadelphia), Jan. 25, 1791, at 3; see also
Tench Coxe, An Examination of the Constitution for the United States of America
13 (Philadelphia, Zachariah Poulson 1788) (distinguishing appointed from elected
positions under the Constitution). If the Court is looking for a useful
definition of the difference between appoint and elect, Representative Tucker's
remarks would be a good starting point. The political science literature also
has explored this topic. See Hans Kelsen, A General Theory of Law and State 195
(1945) ("An organ [of state] is 'appointed' by a superior individual organ. It
is 'elected' by a collegiate organ, composed of individuals who are legally
subordinated to the elected organ. An organ is superior to another if the former
is capable of creating norms obligating the latter."). To put it most simply,
asserting that appoint and elect are coterminous is plainly at odds with the
Sinecure Clause and the Constitution's text as a whole.
We see no indication that Coxe and Tucker appeared in Heilpern and Worley's
working paper, presumably because those sources did not show up with a simple
query about elections and appointments. Tillman, on the other hand, included
extensive support for his position as early as his 2009 article. See 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 107 n.10, n.30 (2009).
Regardless of how the Court rules on Petitioner's case, Respondents' argument
that the President and Vice President are appointed for purposes of the
Constitution, is squarely inconsistent with the Constitution's text.
RECESS APPOINTEES AND "OFFICERS OF THE UNITED STATES"
Back to Justice Scalia. In NLRB v. Noel Canning, Justice Breyer's majority
opinion stated that "the Recess Appointments Clause sets forth a subsidiary, not
a primary, method for appointing officers of the United States." And Justice
Scalia's concurrence stated, "Except where the Constitution or a valid federal
law provides otherwise, all 'Officers of the United States' must be appointed by
the President 'by and with the Advice and Consent of the Senate.'" In response
to a letter Tillman had sent to Scalia, on July 22, 2014, Scalia wrote to
Tillman:
> Dear Mr. Tillman:
>
> I meant exactly what I wrote. The manner by which the President and Vice
> President hold their offices is "provide[d] otherwise" by the Constitution. As
> is the manner by which the Speaker of the House and the President Pro Tempore
> of the Senate hold theirs.
>
> Sincerely
>
> /s/ Antonin Scalia
As a general matter, we agree with Chief Justice Roberts that a Justice's
private papers are an "unfortunate source" to understand a published opinion.
Still, we think there is a way to explain what Justices Breyer and Scalia wrote
in Noel Canning: recess appointees are "Officers of the United States" whose
appointments are provided for in Article II, Section 2. Whatever the phrase
"whose Appointments are not herein otherwise provided for" means—and we have
advanced a consistent theory of what that phrase means—the appointment of recess
appointees is expressly provided for "herein" in Article II, Section 2.
Article II, Section 2 refers to three separate appointments processes:
1. The Principal Officers Appointments Clause: "[The President] shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States, whose Appointments are
not herein otherwise provided for, and which shall be established by Law"
2. The Inferior Officers Appointments Clause: "but the Congress may by Law vest
the Appointment of such inferior Officers, as they think proper, in the
President alone, in the Courts of Law, or in the Heads of Departments."
3. The Recess Appointments Clause: "The President shall have Power to fill up
all Vacancies that may happen during the Recess of the Senate, by granting
Commissions which shall expire at the End of their next Session."
The process by which recess appointees are appointed is, as Justice Breyer
explained "a subsidiary, not a primary, method for appointing officers of the
United States." It is "subsidiary," because it is not made through the Principal
or Inferior Officers process. The President can make the recess appointees on
his own, and then the President commissions them. These positions can be fairly
construed as "Officers of the United States." We discuss the status of recess
appointees in Part III at pp. 435-453.
We think this reading reconciles Noel Canning with another recent Appointments
Clause case, Lucia v. SEC (2018). Justice Kagan's majority opinion stated "[t]he
Appointments Clause prescribes the exclusive means of appointing 'Officers.'"
Justice Thomas' concurrence also stated "The Appointments Clause provides the
exclusive process for appointing 'Officers of the United States.'" In order to
avoid any tension between Noel Canning and Lucia, we think the reference to
Appointments Clause would have to be read to include the three aspects of
Article II, Section 2: the Principal Officers Appointments Clause, the Inferior
Officers Appointments Clause, and the Recess Appointments Clause. So understood,
Noel Canning does not in any way suggest that the President is an appointed
"Officer of the United States" whose appointment is actually provided for in
Article II. Certainly, there is no express language in Noel Canning affirming
that the President is an "officer of the United States."
NO GOLDEN TICKET
Amicus suspects that the Respondents saw the letter that Justice Scalia sent
Professor Tillman as a golden ticket. But there is no leprechaun and no pot of
gold at the end of this rainbow. In early 2023, we (Tillman and Blackman)
published Justice Scalia's letter in our scholarship. We did so believing then
and now that Scalia erred. "Even Homer sometimes nods." Part II, supra at 448.
But Assistant Attorney General Scalia was correct in his 1974 opinion. In
December 1974, he wrote a memorandum to the President's Associate Counsel.
Scalia explained that when "the word 'officer' is used in the Constitution, it
invariably refers to someone other than the President or Vice President."
Memorandum from Antonin Scalia, Asst. Att'y Gen, Re: Applicability of 3 C.F.R.
Part 100 to the President and Vice President, to Kenneth A. Lazarus, Assoc.
Couns. to the President, at 2 (1974) [https://perma.cc/2PUP-2ZVQ]. Scalia then
cited seven provisions of the Constitution, including the Appointments Clause.
He added that "The Supreme Court, moreover, has interpreted Article II, Section
2, Clause 2, as being the exclusive means by which one may become an 'officer.'"
(emphasis added). Scalia in 1974 used the same phrasing as Justices Kagan and
Thomas did in Lucia. And Scalia observed that "[t]his use of the word 'officer'
in the Constitution has led the Department of Justice consistently to interpret
the word in other documents as not including the President or Vice President
unless otherwise specifically stated." We agree with what Scalia wrote in 1974.
In a recent post, Marty Lederman referred to the analysis in Scalia's 1974
memorandum as an "overbroad dictum," without noting that Scalia was the author.
Lederman then contrasts the Scalia opinion with a 2009 Office of Legal Counsel
opinion finding that the Foreign Emoluments Clause did not prevent President
Obama from receiving the Nobel prize. That 2009 opinion was signed by David
Barron, while Lederman was his deputy. In 2019, the Congressional Research
Service declined to take a position on whether the President was subject to the
Foreign Emoluments Clause in light of the "significant academic debate about
whether Office of Legal Counsel's conclusion [in its 2009 memorandum] comports
with the original public meaning of the Foreign Emoluments Clause." This issue
is not so open-and-shut.
As we have time and the opportunity, we may release other Scalia-Tillman
correspondence.
THE CLAUSE-BOUND VIEW
How will the Respondents respond to these claims? As noted above, they may drop
the argument that the Speaker and Senate President Pro Tempore are "Officers of
the United States." And they may even drop the argument that the President and
Vice President are appointed officers of the United States. We don't think
either late-in-the-day revisionist views will hold up well under scrutiny. If
so, they will be left arguing that, whatever the Constitution meant in 1788,
those words had a different meaning in 1868. But once you stipulate that the
President was not an "Officer of the United States" for purposes of the
Appointments Clause, the rest of Respondents' case becomes much more difficult.
We suspect another strategy may prove attractive for Respondents. Rather than
arguing that the meaning of "Officers of the United States" and "Office under
the United States," is consistent in the Constitution across clauses, it can be
argued that the meaning of this language in each clause is different. We refer
to this approach in Part II of our series as the Clause-Bound View (pp.
425-428). In January 2022, we wrote:
This view could be premised on the notion that the Framers and ratifiers did not
distinguish among the Constitution's divergent "office"- and "officer"-language.
That is, the Framers did not ascribe any systematic differences in meaning when
they referred to "Officers of the United States," "Office[s] . . . under the
United States," and the other categories. According to the Clause-Bound View,
even identical language used in different clauses was used indiscriminately. We
are not aware that any jurists or scholars have openly embraced Approach #4.
Now, two professors have adopted this view in recent Balkinization posts. First,
Mark Graber offered this account of the Blount impeachment trial, and
constitutional interpretation more broadly:
> Forced at gunpoint to reach conclusions, the Blount impeachment is best
> thought of as a precedent for the proposition that context determines whether
> for the purposes of a particular constitutional provision the president is a
> civil officer, an officer of the United States, or an officer under the United
> States. Both prosecutors (Bayard, Harper) and the lead defense attorney
> (Dallas) advocated this contextual interpretation of "officer." The other
> defense attorney (Ingersoll) did not challenge this position or state a clear
> position on whether presidents were exempt from such provisions as the
> emoluments clause or the ban on religious tests for office holding. Whether
> the president should be included in the emoluments clause or ban on religious
> tests for office holding, from this perspective, depends on the logic of the
> emoluments clause and ban on religious tests for office holding, not on the
> scope of "officer under the constitution" appropriate for some other
> constitutional provision.
Second, Marty Lederman—a veteran Office of Legal Counsel attorney—provided a
similar functional approach to the Constitution's text:
> For starters, it's a mistake to assume that the terms "officer" or "office" or
> "officer of the United States," etc., must have exactly the same scope
> wherever they appear in the Constitution, including with respect to whether
> they include the President, the Vice President, Senators, Representatives, and
> particular sorts of executive branch officials. Such "coverage" questions
> historically have assessed with an eye to functional and practical
> considerations, taking into account the purposes of the provisions in
> question. (The Department of Justice, for example, has long opined that the
> "officers" covered by the Foreign Emoluments Clause are not coterminous with
> those covered by the Appointments, Incompatibility and Ineligibility Clauses.)
> Therefore there's no particular reason to believe that the term "officer of
> the United States" in Section 3 must have the same scope as that term in one
> or more of the original Articles of the Constitution.
We thank Lederman for crediting Tillman in his post as the "architect" of
Petitioner's legal theory. We also thank Graber and Lederman for their candor in
saying what the Respondents cannot say. Of course, our position is that Tillman
is not the "architect;" rather, he has merely collected and transmitted
interpretations put forward by earlier commentators, e.g., Joseph Story, David
McKnight, etc, and those commentators, in turn, believed that the meanings they
put forward inhered in the Constitution's text. Cf., e.g., Oliver P. Field, The
Vice-Presidency of the United States, 56 Am. L. Rev. 365, 382 (1922) ("Whether
the president and vice-president are officers of the United States is a subject
on which conflicting opinions are held."). If the Supreme Court adopts the
Clause-Bound approach, and lines up with Graber and Lederman, it would amount to
a repudiation of textualism and originalism, and a reversion back to the worst
excesses of purposivism and original intentions. Bostock will have been in
vain—a point we alluded to in our brief.
Still, we can see why this approach would be attractive—to some. If the Court
says that each provision must be interpreted by itself, the Justices can easily
cabin any collateral consequences for the future. The Court could say that the
President is an appointed "Officer of the United States" for purposes of Section
3 and the Appointments Clause, but is not a "civil Office under the Authority of
the United States" for purposes of the Sinecure Clause. The Speaker and Senate
President Pro Tempore do not hold an "Office under the United States" for the
Incompatibility Clause, but both positions are "Officer[s]" for purposes of the
Succession Clause. Each provision would be read to accomplish the normative goal
that an ad hoc majority of the Supreme Court finds most salutary. This is the
exact opposite approach we have advocated for many years now.
For this reason, it may turn out that Trump v. Anderson will be a litmus test
for how the Court approaches text and history, and what that means for the
future of originalism. Recently, Gerard Magliocca observed that a decision
keeping Trump on the ballot would not "write." Will Baude and Mike Paulsen
amplified this claim. We submit just the opposite. An opinion endorsing the sort
of anti-textualism that Lederman and Graber advance will simply not write. By
contrast, an opinion based on our approach will write quite easily—the Colorado
District Court did it in about five pages.
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NEXT: The Objection That Enforcing Section Three Would Be Too "Dangerous"
Josh Blackman is a constitutional law professor at the South Texas College of
Law Houston, an adjunct scholar at the Cato Institute, and the President of the
Harlan Institute. Follow him @JoshMBlackman.
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