The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.