The Emoluments Clauses litigation, Part 1: The Constitution's taxonomy of officers and offices

The Foreign Emoluments Clause provides that "no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." In a series of coordinated lawsuits brought under the Foreign Emoluments Clause, plaintiffs contend that because "Defendant Donald J. Trump is the President of the United States of America," he "thus holds an 'Office of Profit or Trust' under the United States." Their argument certainly has an intuitive appeal: How could the presidency not qualify as an "Office of Profit or Trust under the United States" for purposes of this important anti-corruption provision? But an intuition is not an argument, and it is not evidence. Plaintiffs cannot point to a single judicial decision holding that this language in the Foreign Emoluments Clause, or the similar and more expansive phrase, "Office … under the United States" used in other constitutional provisions, applies to the president. Rather, the text and history of the Constitution, and post-ratification practice during the early republic, strongly support the counterintuitive view: The president does not hold an "Office … under the United States."

One of us (Tillman) has consistently written for about a decade that elected federal officials, such as the president, do not hold "Office … under the United States." The other one (Blackman) was persuaded by this research some years ago, long before the notion of a President Trump was even conceivable. Prior to the election, William Baude wrote that "Professor Tillman's theory makes sense of patterns that most of us never saw. It brings order out of chaos." To that end, we have submitted amicus briefs to the District Courts for the Southern District of New York and the District of Columbia, advancing a position that the Justice Department has not: that the president is not subject to the Foreign Emoluments Clause. We are grateful for assistance on the briefs from Carrie Severino of the Judicial Education Project and Robert W. Ray and Brittney Edwards of Thompson & Knight LLP.

In this post, we will explain that under the Constitution's taxonomy, appointed - and not elected - officials hold office "Under … the United States."

The "Officers of the United States" Drafting Convention Refers to Appointed Positions in the Executive or Judicial Branches

In four clauses, the Constitution uses the drafting convention "Officers of the United States": the Appointments Clause, the Impeachment Clause, the Oaths Clause and the Commission Clause. According to Joseph Story's "Commentaries, "such positions "derived their appointment from, and under the national government" and not from "the people of the states." In other words, such officers are appointed, e.g., under the Appointments Clause, and are not elected. The text and history of the Constitution confirm that Story was correct: This important and frequently litigated category of positions is limited to executive-branch and judicial-branch appointed officers.

First, the Appointments Clause spells out with clarity that the president can nominate "Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States." Under the canon of ejusdem generis, "all other Officers of the United States" should be read to reference the same kind of executive and judicial branches officers that the clause expressly lists. All these officers are appointed, not elected.

Second, the Impeachment Clause expressly provides that "[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment. …" Story explained that the president and vice president's enumeration in the Impeachment Clause in addition to "all civil Officers of the United States" shows that the president and vice president are not deemed "officers of the United States" themselves. Otherwise, the Framers would have stated that "all other civil officers" were subject to impeachment.

Further, the oaths clause specifically enumerates that "Senators and Representatives, and the Members of the several State Legislatures," as well as "all executive and judicial Officers, both of the United States and of the several States of the United States" were required to be "bound by Oath or Affirmation to, support this Constitution." In contrast, the president - whose position is not listed in Article VI - recites a different oath provided in Article II, Section I. For other positions that are not covered by Article VI, including the secretary of the Senate and clerk of the House and their staff, Congress had to create oaths by statute based on the Rules of Proceeding Clause or other enumerated powers.

Finally, the commission clause provides that "all the officers of the United States" receive presidential commissions. All means all. This structure explains why appointed executive-branch and judicial-branch officers receive commissions, but there is no record of any elected official, whether a president, vice president or a member of Congress, ever receiving a commission. The reason is simple: Elected officials like the president are not "Officers of the United States."

"Office . . . under the United States" Refers to Appointed Positions in All Three Branches of Government

We have explained that the phrase "Officers of the United States" is a relatively narrow set of positions: appointed judicial branch and executive branch officers. By contrast, the Foreign Emoluments Clause uses the phrase "Office … under the United States," which refers to any federal appointed position that is created, regularized or defeasible by statute in any of the three branches of the federal government. "Office . . . under the United States" is a broader category than "Officers of the United States."

All "Officers of the United States" necessarily hold "Office . . . under the United States." We maintain, however, that not all who hold "Office . . . under the United States" are also "Officers of the United States." For example, the clerk of the House of Representatives holds an "Office . . . under the United States," but is not an "Officer of the United States." He is not nominated by the President, does not receive a commission and is not subject to impeachment, and his oath is not authorized by the Oaths Clause. Instead, he is chosen by the House of Representatives, and his emoluments are regularized by statute. Conversely, the secretary of state, an executive branch officer, is both an "Officer of the United States" and holds "Office . . . under the United States." He is nominated by the president, receives a commission, is subject to impeachment, and his oath is authorized by the Oaths Clause.

This understanding of the "Office . . . under the United States" drafting convention has its roots in the prior British statutory drafting practice using "Office under the Crown." For the last three centuries, "Office under the Crown," a phrase commonly used in British statutes, has not extended to elected positions. See, e.g., An Act for the Security of Her Majesty's Person and Government, 6 Ann. c. 7, § 25 (1707), available at bit.ly/2riHlG1 (disqualifying any person from holding a seat in the House of Commons if they hold a "new office or place of profit whatsoever under the [C]rown," that is, a position created after 1705); J.L. De Lolme, The Constitution of England 62 (1775), available at bit.ly/2sl1yeK (explaining that one holding a "new office under the Crown" is "incapable of being elected [a] Member[]" of the Commons). Mem. of the U.K. Att'y Gen., at 135-36 (May 1, 1941), available at bit.ly/2rjcw00 ("If the Crown [the Executive Government] has the power of appointment and dismissal, this would raise a presumption that the Crown controls, and that the office is one under the Crown. … If the duties are duties under and controlled by the Government, then the office is, prima facie … an office under the Crown . . . ." (emphasis added)). To this day, Commonwealth courts distinguish between (1) officers who are appointed to a position "under the Crown" and (2) officials who "hold their position by virtue of their election by the people." This drafting convention reflects a self-evident aspect of government: Appointed officers are subject to removal and supervision in the normal course of their duties by higher governmental authority. By contrast, elected officials are not subject to such supervision and are answerable primarily through elections. This drafting convention was used in colonial practice, governments of the revolutionary era, the Articles of Confederation, and later by the Framers of the Constitution and the First Congress.

In four clauses, the Constitution invokes the drafting convention "Office . . . under the United States." First, the Incompatibility Clause provides that "no person holding any Office under the United States" may serve in either the House or Senate. This "Office . . . under the United States" language applies to federal appointed positions created, regularized or defeasible by statute in all three branches. The primary purpose of the Incompatibility Clause was to prevent the president from bribing members of Congress with appointed lucrative office, not to keep members of Congress from being president. The Framers saw the English constitution as corrupt because the king could bribe members of Parliament with lucrative office. But the king never bribed members of Parliament by making them king. Likewise, the president could bribe members of Congress with lucrative positions but could not make them president. The Incompatibility Clause was as an ethics provision, not a separation-of-powers provision.

Three other clauses in the Constitution use the "Office . . . under the United States" drafting convention, but with variants. First, the Disqualification Clause allows Congress to bar impeached officers from prospectively holding "any Office of honor, Trust or Profit under the United States." An office of profit refers to a position with a regular salary or other authorized emoluments (e.g., fees, commissions, etc.), and an office of trust refers to a position with regular, non-delegable duties (i.e., requiring the exercise of discretion). Finally an office of honor refers to a position without fixed emoluments (and perhaps absent regular duties). That Congress can impose separate disqualifications on those who hold "Office . . . under the United States" affirms the conclusion that the latter category was separate from elected officials.

Second, the Elector Incompatibility Clause prevents a "Senator or Representative, or person holding an Office of Trust or Profit under the United States" from serving as an Elector. Listing Senators and Representatives, alongside those who hold "Office . . . under the United States," again reaffirms the conclusion that the "Office . . . under the United States" category was separate from elected officials.

Finally, the Foreign Emoluments Clause limits the receipt of foreign presents for a person "holding any Office of Profit or Trust under [the United States]." In his "Commentaries," Story explained that the president is not an "officer of the United States." In the very same passage, Story also indicated that the same interpretive position applied to the Constitution's "office . . . under the United States" language. In other words, the Constitution's general officer of the United States and office under the United States language does not reach the presidency. Only express constitutional language reaches the presidency.

"Office under the Authority of the United States" Refers to a Broader Category of Appointed Officials

Article I, Section 6, Clause 2, which includes both the Ineligibility and Incompatibly Clauses, 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; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." This provision illustrates how the Framers distinguished between an "Office under the United States," and "Office under the Authority of the United States." That the Framers used both phrases - using different office-language in the very same sentence - confirms that they had distinct meanings.

This broader category, i.e., "Office under the Authority of the United States," includes appointed positions in all three branches of our government - that is, it includes all "Offices . . . under the United States." It also includes positions that are not necessarily subject to regular federal supervision, nor were they necessarily created by federal statute. For example, if Congress issues a letter of marque and reprisal to a ship's captain on a civilian (privately owned) vessel, that officer would be an "Officer under the Authority of the United States." He would not be an "Officer of the United States" nor hold "Office . . . under the United States." Under the Ineligibility Clause, a member of Congress who votes to issue a letter of marque and reprisal would be ineligible from subsequently accepting that very letter. The same principle applies to the far more routine circumstances where a member of Congress, for example, seeks to serve in a position he voted to create, or for which he voted to increase the emoluments thereof. The Ineligibility Clause prohibits (for a limited amount of time) such second careers.

"Office or Public Trust" under the United States Includes All Appointed and Elected Federal Officials

The broadest category of positions within the federal government is reflected in the Religious Test Clause, which provides "no religious Test shall ever be required as a Qualification to any "Office or public Trust under the United States." The category "Office . . . under the United States" extends to all appointed federal officers, and the category "Office or public Trust under the United States" extends to all elected federal officials. Thus, this category includes all federal positions, both appointed and elected. Critically, all of the prior categories -"Officers of the United States," "Office . . . under the United States," and "Office under the Authority of the United States" - exclude elected positions. Specifically, they do not embrace positions that stand for election, such as representatives, senators, and - as most relevant to this case - the president. However, these federal positions do fall within Article VI's grouping of "Office or public Trust under the United States."

Once again, it would be a mistake to presume that "Office or public Trust under the United States" is synonymous with the other variants discussed above. On Aug. 30, 1787, Charles Pinckney moved to insert what would become the Religious Test Clause into the Constitution. His proposal provided, "But no religious test shall ever be required as a qualification to any office or public trust under the authority of the United States." Note that this draft included the additional language, "the authority of." Pinckney's motion was seconded by Gouverneur Morris, and after a brief debate, was passed unanimously. That provision, however, would soon be amended. The Committee of Style, which included Gouverneur Morris, removed "the authority of" from Pinckney's proposed language. In its place, the Committee reported the more precise version that would ultimately be ratified: "Office or public Trust under the United States." Yet, they struck it in the Religious Test Clause. The precise wording chosen by the Framers matters. Constructions that disregard this principle should be rejected; constructions that support this principle should be accepted. The Framers could have left this language unchanged. But they did not do so here. This is some indication that the precise wording the Framers chose mattered to them and to their public audience in 1788 and 1789. One virtue of the taxonomy proposed here is that it makes sense of the Constitution's variegated language.

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We concede that the taxonomy described in this post may feel unnatural, because most readers of the Constitution simply assume that the Framers employed "officers," "officers of" and "office under" interchangeably. For example, Professors Akhil Reed Amar and Vikram David Amar wrote that the different variants of officer language, "[a]s a textual matter . . . seemingly describes the same stations (apart from the civil/military distinction) - the modifying terms 'of,' 'under,' and 'under the Authority of' are essentially synonymous." This approach, however, fails to read the Constitution as a whole. As Asher Steinberg noted in a recent post, though he was "very skeptical" of our position at the outset, after reviewing the briefs, posts and articles, he "began to become convinced not only that there is a very serious textual argument for Tillman's position, but that it was difficult to see what an adequate textual rejoinder would look like." He added, "None, I believe, has yet been offered."

In our next post, we will show that the practices of President George Washington and other Founders who succeeded him as president during the early republic confirm that they understood that the president was not subject to the Foreign Emoluments Clause; likewise, the drafting practices of the First Congress and the writings of Alexander Hamilton lend further support to this position.