The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
For more than a decade, Professor Seth Barrett Tillman has been a leading authority on the offices and officers of the Constitution. And for nearly that long, I have been an admirer of Seth's careful work. More recently, I have been honored to collaborate with Seth concerning the Foreign Emoluments Clause litigation. That once-obscure provision of the Constitution, however, only reflects part of Seth's broader theory. There are twelve clauses of the Constitution that refer to six categories of officers. It is impossible to cram such an extensive discussion into a single article. So we chose a different path.
Today, we are proud to announce a planned ten-part series on the offices and officers of the Constitution. And we are grateful to the South Texas Law Review for undertaking such an ambitious proposal. The journal will publish two installments in each issue over the next two years or so.
We have posted the first installment to SSRN. This piece merely provides an introduction to our broader project. Here is the abstract.
In this Article, we introduce our planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution. This series will explain the original public meaning of twelve clauses of the Constitution that refer to six categories of offices and officers. First, the phrase "officers of the United States" refers to appointed positions in the Executive and Judicial Branches. Second, the phrase "office . . . under the United States" refers to appointed positions in the Executive and Judicial Branches, and also includes non-apex appointed positions in the Legislative Branch. Third, the phrase "Office under the Authority of the United States" includes all "office[s] . . . under the United States," and extends further to include a broader category of irregular positions. Fourth, the phrase "Officer" of "the Government of the United States" refers to the presiding officers identified in the Constitution. Fifth, the word "Officer," as used in the Succession Clause, refers to those who hold "office . . . under the United States" and those who are "Officer[s]" of "the Government of the United States." Sixth, the phrase "Office or Public Trust under the United States" encompasses two categories of positions: "Office[s] . . . under the United States" and "Public Trusts under the United States." The former category includes appointed positions in all three branches; the latter category includes federal officials who are not subject to direction or supervision by a higher federal authority in the normal course of their duties.
Our categorization excludes elected officials from the categories "officer of the United States" and "office . . . under the United States." Not everyone agrees with our Minimalist View. Professors Akhil Reed Amar and Vikram David Amar have put forward an Intermediate View: the elected President is an "officer of the United States," but members of Congress are not. Professor Zephyr Teachout advances a Maximalist View: elected and appointed positions, in all three branches, are "offices" and "officers." And some scholars may embrace a fourth approach. Under a Clause-Bound View, fine variations in the Constitution's text should not be used to distinguish different kinds of offices and officers. Rather, this view purports to be guided by the specific purposes that animate individual clauses.
As a general matter, it is impossible to reject any of these four approaches with 100% certainty. Instead, we make a limited claim: our approach, the Minimalist View, is better than its known rivals. The Framers chose different "office"- and "officer"-language in different clauses of the Constitution. These provisions were altered throughout the Convention to standardize and harmonize how the Constitution refers to offices and officers. And the conduct of President Washington, his cabinet, and the First Congress was consistent with the Minimalist View. This evidence undermines the Intermediate, Maximalist, and Clause-Bound Approaches.
Part I, this Article, introduces our planned ten-part series. Part II will expound on the four approaches to understand the Constitution's "office"- and "officer"-language. Part III will analyze the phrase "officers of the United States," which appears in the Appointments Clause, the Commissions Clause, the Impeachment Clause, and the Oath or Affirmation Clause. Part IV will trace the history of the "Office . . . under the United States" drafting convention. Part V will consider the meaning of the phrase "office . . . under the United States," which appears in the Incompatibility Clause, the Impeachment Disqualification Clause, the Foreign Emoluments Clause, and the Elector Incompatibility Clause. Part VI will turn to the phrase "Office under the Authority of the United States," which appears in the Ineligibility Clause. Part VII will study the Religious Test Clause, which uses the phrase "Office or Public Trust under the United States." Part VIII will focus on the phrase "Officer" of "the Government of the United States" in the Necessary and Proper Clause. Part IX will elaborate on the word "Officer," standing alone and unmodified, in the Succession Clause. Part X will conclude the series.
Professor Larry Solum offers some early praise:
Highly recommended! I'm looking forward to the rest of this mega-article!
If all goes to plan, all of the installments will be published by circa 2023. And, we hope, these installments will form the basis for a book project. We welcome any comments or feedback!