Justice Breyer made it impossible for Congress to impeach territorial officers for accepting bribes

The unintended consequences of not reading the Constitution’s “office”- and “officer”-language intratextually.

|The Volokh Conspiracy |

Seth Barrett Tillman and I wrote a new piece on Balkinization about the Puerto Rico Appointments Clause case. Justice Breyer's majority opinion held that territorial officers with "with primarily local duties" are not "officers of the United States," as that term is used in the Appointments Clause. We explain that Justice Breyer's analysis leads to some unanticipated consequences. Here is a snippet:

The PROMESA case also has unanticipated consequences. If territorial officers with only local duties are not "officers of the United States," then they are not subject to the Impeachment Clause. That provision extends to the "President, Vice President and all Civil Officers of the United States." Thus, Congress would be helpless to impeach, try, remove, and disqualify a territorial officer—no matter how egregious the conduct. Consider an example involving St. Clair. Trump v. Mazars recounted that in 1792, he led a "campaign against the Indians in the Northwest Territory, which had concluded in an utter rout of federal forces when they were caught by surprise near the present-day border between Ohio and Indiana." Under the PROMESA Court's reading of the Appointments Clause, Congress would have been unable to remove St. Clair through impeachment processes. By contrast, we can point to a 1796 opinion of the Attorney General, Charles Lee, advising the House of Representatives that it may proceed against a territorial judge by impeachment.

Justice Breyer's majority opinion has other consequences. If territorial officers with primarily local duties are not "officers of the United States," regardless of how they are appointed, then they may also not hold "office[s] . . . under the United States." Under the prevailing readings of the Constitution, there is no meaningful difference between the Constitution's "office"- and "officer"-language. The two phrases—"officers of the United States" and "office under the United States"—are seen as co-extensive. (We do not subscribe to that modern atextual reading of the Constitution.) If these conclusions are accurate, then territorial officers would not be subject to the Foreign Emoluments Clause. As a result, St. Clair and other frontier officers could have freely accepted foreign state diplomatic gifts or, even, bribes from England, France, and Spain, without seeking congressional consent. Congressional consent would not be required for diplomatic gifts, and impeachment would not extend to outright bribes. Moreover, such territorial officers would not be bound by two other provisions that use the phrase "office . . . under the United States": the Elector Incompatibility Clause and the Impeachment Disqualification Clause.

The PROMESA Court may have resolved one question with respect to the Appointments Clause, but it created far greater problems with respect to the Impeachment Clause and the Foreign Emoluments Clause. The Constitution's "office"- and "officer"-language has a Newtonian quality to it. Removing an office from the scope of one clause will necessarily remove it from the scope of other clauses using the same "office"- and "officer"-language. Likewise, subjecting an office to the scope of one clause will necessarily subject it to other clauses. Every action has an equal and opposite reaction. It is not possible to focus on a single provision at a time. This analysis should demonstrate that the Constitution's "office"- and "officer"-language must be considered intratextually. A ruling with respect to one clause will have unintended consequences for other clauses. The Appointments Clause cannot be considered in a vacuum.

This post is an excerpt from our forthcoming article, Offices and Officers of the Constitution.

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  1. Am I missing something? Is it so profoundly obvious that territorial officers are impeachable that it somehow calls Breyer’s analysis into question?

    And is there anything stopping Congress from simply enacting anti-corruption measures (and removal provisions, for that matter) when it creates the territorial office?

    1. This seems to cover Puerto Rico just fine, insofar as we’re talking about people appointed from Washington: https://www.law.cornell.edu/uscode/text/18/201

      (And to the extent that it does not, the equivalent Puerto Rico law will.)

    2. Or, if they cannot be impeached, could they not be simply arrested, charged, and summarily terminated, like any other federal employee? The author is trying to make it sound like they are some untouchable. However, if they cannot be impeached by Congress, then the Justice Department has extensive experience in this.

  2. “Congress would have been unable to remove St. Clair through impeachment processes.”

    ????

    No military officers have ever been impeached.

    I don’t think negligence [“caught by surprise “] is a high crime or misdemeanor either.

    1. Indeed, military officers aren’t subject to impeachment: Washington did replace him as a military command, though. However, St. Clair was also the governor of the Northwest Territory, until he was removed by Jefferson. But again, I’m not sure why it’s so obvious to Prof. Blackman that Congress should have been able to impeach him from this latter role. And since the Northwest Territory predates the constitution, I’m also not sure how useful it is as an example.

    2. Lincoln removed several during the Civil War.
      Possibly his CIC power?

      UCMJ articles are, by definition, crimes — and I’d bet one would cover this.

      1. Do you actually think the president removing a military officer from command is impeachment?

        And violations of the UCMJ (which, of course, didn’t exist in 1792) are, by definition, not crimes.

      2. We got caught by surprise — let’s see — multiple times in the Civil War, Pearl Harbor, the Battle of the Bulge, lots of times in Vietnam, 9/11, many more.

        If getting caught by surprise was an impeachable offense, we woildn’t have a miltitary. Just as weather people can guarantee the weather, military people can’t guarantee what the other side is up to.

  3. If a governmental official does not qualify for impeachment, the question is really if Congress goes ahead an impeaches and removes such an official (which might have been defined as the courts as one that is not eligible for impeachment) will the Supreme Court exercise judicial review or punt it as a political question. The Nixon case would suggest probably would find it a political question, but the concurrences in it would leave at least some precedential room for exercise of judicial review.

  4. Seems weird to imply this is a wacky Breyer opinion when (a) the decision was unanimous and (b) both concurrences would have resulted in the exact same “problems” that the post describes.

    1. Sure, the decision was unanimous, but positions can change, particularly from application of persuasive argument. At current pace, Profs. Blackman and Tillman may precipitate a consensus for their views by roughly 3403.

  5. The Constitution’s “office”- and “officer”-language has a Newtonian quality to it. Removing an office from the scope of one clause will necessarily remove it from the scope of other clauses using the same “office”- and “officer”-language. Likewise, subjecting an office to the scope of one clause will necessarily subject it to other clauses. Every action has an equal and opposite reaction.

    I don’t understand this passage at all.

    Could someone do me a favor and tell me what it means? It’s been a while since I had a physics class.

  6. As far as their point, I think they’re saying that the phrases “officer of the United States” and “persons holding any office under the United States” and so on refer to the same group of people every time they’re used in the constitution. So if territorial officials aren’t “Officers of the United States” for the purposes of needing to be nominated by the president and approved by the Senate, they’re also not (for instance) “civil Officers of the United States” subject to impeachment. Or, conversely, if they were “Person[s] holding any Office of Profit or Trust under [the United States]” such that they couldn’t accept foreign emoluments without Congressional approval, they’d also need to be appointed with the advice and consent of the Senate (unless they were inferior offices and Congress had so authorized).

    As far as what this has to do with Newton, your guess is as good as mine.

    1. I thought their point was that those were different categories, but I admit I haven’t read the posts on the subject carefully.

  7. Do they “have” to remove them through the impeachment clause?

    Couldn’t they simply do it through legislation?

    1. Defunding the job conditional on person X continuing to hold it…

      (Or, in normal English, write a budget that says that not a penny of tax money may be spent on person X’s salary, or at least on person X’s salary for job Y.)

      1. Would that be a bill of attainder?

        1. I don’t see how. A bill of attainder (AFAIK) is a statute that declares someone guilty of a crime and orders them punished, or does something essentially equivalent. Passing a statute that effectively requires someone to be fired isn’t remotely criminal.

          1. I thought the punishment part was separate from the guilt part – i.e. if a bill targets someone for what is effectively a punishment, it’s not allowed.

            1. Even then. Admittedly without checking the case law, I would have thought that “effectively a punishment” should read “effectively a criminal punishment”. Being fired isn’t a criminal punishment.

  8. By contrast, we can point to a 1796 opinion of the Attorney General, Charles Lee, advising the House of Representatives that it may proceed against a territorial judge by impeachment.

    I’m guessing you were really hoping that no one would actually read that letter.

    1. Oh, wow.

      Impeachment is noted as an option, but the finding was that impeachment was not the appropriate course of action – trial while in office is!

      1. Prof. Blackman would just say that isn’t the “best reading” of the Lee letter, a la his farcical and incorrect interpretation of Federalist 77.

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