Coming Soon: A Planned Ten-Part Series About The Offices and Officers of the Constitution

Seth Barrett Tillman and I have planned a ten-part series that will explain the original public meaning of twelve clauses of the Constitution that refer to six categories of offices and officers.

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!

Comments

[Dr. Ed 2]

If I’m not mistaken, John Marshall was concurrently Secretary of State and SCOTUS Chief Justice for a while — imagine the outcry that would cause today.

Likewise, and I may be mistaken on this, wasn’t it Marshall himself who hadn’t delivered Marbury’s commission before midnight? Today there’d be an expectation that Marshall recuse himself from what was probably one of his most famous decisions.

Washington was not a subsistence farmer — his farm was an actual industry producing (and selling) products such as whiskey. (I’m not so sure about Adams (who had a law practice) but neither he nor Jefferson were subsistence farmers.) Martha may have helped run it, but Washington didn’t shut down his agribusiness for eight years while POTUS — he likely was selling (and serving) his Whiskey to whomever.

My point is that all of the things that people tried to raise against Trump somehow seemed not to be issues in the 1790s….

[Dr. Ed 2]

it’s not just Trump — JFK’s appointment of his brother AG raised issues 50 years ago — and while I don’t know of a brother (other than the Dulles Brothers at State & CIA under Eisenhower), how many officeholders were related to each other in the early 19th Century?

[DaivdBehar]

Doctor: You may enjoy this analysis from my student days, a few years ago. Marbury is void for its criminality and for its misconduct,, even in its era.

https://supremacyclaus.blogspot.com/2007/06/marburygate-or-misconduct-in-marbury-v.html

Of course, judicial review and executive regulation violate Article I Section 1, giving all lawmaking power to the Congress. Congress can remedy that violation by passing all executive regulations and Supreme Court decisions each year. The self evident truth of the high school English of the constitution is totally ignored and covered up by the denier law profession. They are crazier than the Unabomber.

[Syd Henderson]

You’re certainly right about the first: Marshall was both Secretary of State and Chief Justice from February 4 to March 4, 1801. And he was responsible for arranging the delivery of the commissions.

[David Nieporent]

Only ten parts? I admire Prof. Blackman’s newfound restraint.

(Or does that not include the appendices in which he tells us what he had for breakfast while writing it, and explores the choice of fonts he selected?)

[DaivdBehar]

David, Like STFU. Annoying nitpicking.

[captcrisis]

Without all that wretched “signposting” (as we called it in Law Review) the ten-part article could be reduced to a tweet.

“In this article I will point out A, B, C, D and E.

I will start this article by pointing out A. A. Having pointed out A, I will now go on to B.

I’ve pointed out A. Now I will discuss B. B. I have now discussed A and B. I will now go on to C.

[etc.]”

[you get the point]

[captcrisis]

The “Speaker” is not an “Officer”.

[Gabriel Posner]

Whether Professors Blackman and Tillman are right in their reading of the text, it is difficult to argue their interpretation was the “original public” meaning, since the Virginia ratifying convention took the view — in a formal and public vote — that senators are officers of the United States. (Specifically, they voted to include an amendment to the Constitution that a tribunal other than senators adjudicate the impeachment of a senator — clearly meaning that senators are subject to impeachment, which would mean Senators are “officers”.) This was also the view of Edmund Randolph, George Mason (well known), and George Wythe (less well known, but among the most learned of the founders, and if there was an “original public” meaning to a legal term of art, he is one founder who would know about it).

There is also some textual evidence against Professors Blackman and Tillman. Under the appointments clause in Article 2 Section 2, the President can appoint all the officers whose, “Appointments are not herein otherwise provided for.” According to Professor Tillman, there are no appointments of “officers” which are “otherwise provided for” in the Constitution, so what is this clause referring to? It must be senators who are appointed (I repeat, appointed) mid-term when the state legislature is out of session — they are an “Appointment” which is “otherwise provided for,” meaning the President, who generally does appoint “officers,” is not allowed to appoint them. This would mean senators are officers. (The only other possibility is that this was a reference to the Treasury Secretary, who, even in the drafts which emerged from the committee on detail and committee on style, was to be appointed under Article I by Congress; that was struck at the very last moment of the Constitutional Convention, but the reference in Article II “Appointments” which are “otherwise provide for” (i.e., Treasury Secretary) was not updated. But this explanation would mean there is a drafting mistake in the Constitution of the USA, so maybe Randolph, Mason, Wythe, and the Virginia ratifying convention were right after all and had some support for their view.)

I had read Professor Tillman’s work as retreating, to some extent, from the claim that there was a an original public meaning consistent with his reading of “officers of the United States.” While this was suggested in some of Professor Tillman’s earlier work, I did not see the claim (at least not too clearly or prominently) — of an original public meaning — in the SCOTUS emoluments litigation brief filed by Professors Tillman and Blackman. Perhaps I missed it, but their own expert in that litigation — Kenneth R. Bowling — opined in his opinion filed with the court that Professor Tillman and Blackman’s interpretation of “office of the United States” was, at the time of the Constitution, understood by, “some, perhaps many (but certainly not all).”

[Greg J]

From the 14th Amendment:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States

So, do you agree that, at least by the time of the Civil War, Senators and Representatives were not considered “officers under the United States”?

[Lee Moore]

Under the appointments clause in Article 2 Section 2, the President can appoint all the officers whose, “Appointments are not herein otherwise provided for.” According to Professor Tillman, there are no appointments of “officers” which are “otherwise provided for” in the Constitution, so what is this clause referring to?

Er…

1. Some Officers – eg Ambassadors – are explicitly provided for in Article 2 Section 2
2. Tillman, you say, and I’m prepared to believe you and him, says there are no other Officers whose appointment is provided for “herein” – ie in the Constitution.

So what kind of Officers fall under the heading “all other Officers of the United States, whose Appointments are not herein otherwise provided for….” ?

Well isn’t the answer provided by the seven words immediately following : “…and which shall be established by Law”

ie all the folk you see in the Senate smugly brushing off questions during their confirmation hearings, on their way to Offices in the Executive Branch. Whose Offices were not established “herein”, but by Congress.

[bernard11]

The fundamental problem I have here is why the Framers would choose to hide these categorizations behind such slight differences in terminology.

Who in their right mind uses the terms, “officers of the United States,” “office . . . under the United States,” “Office under the Authority of the United States,” etc. to mean different things, without providing explicit definitions?

[Lee Moore]

I forget the details, which I think Tilman goes into at length, but doesn’t it have to do with the English legal and constitutional inheritance, with which the Founders were very familiar ? Where there were subtle differences in the legal meaning of these expressions in England – if you substitute “Crown” for “United States.”

For example, to preserve the independence of Parliament from the King, no member of Parliament may take “an office of profit under the Crown” – for that would make him beholden to the King and not independent. But after Parliament established its de facto supremacy over the King, the actual business of government was carried on by “Ministers of the Crown” sitting in Parliament, nominally acting as the King’s Ministers, but in practice acting as principals.

So how was that possible ? How could they sit in Parliament if they were Ministers of the Crown ? Well it seems a “Minister of the Crown”, even though he gets paid, does not hold an “office of profit under the Crown.”

I imagine the Founders were all over these fine distinctions. Doesn’t mean Tilman is right, but I think it provides an alternative answer to why we have all these subtlely different phrasings. Possibly better than “Whatev, they were tired and wanted to get down to the Inn.”

[Jimmy the Dane]

We could really use a ten part series on the history of bail and why the United States does not use pre-trial detentions as a form of punitive punishment. Those lessons seem to be lost on the current administration.

[Sarcastr0]

LOL, to see the caterwauling of the right when they discover the normal effects of our criminal justice system, and assume they’re being specifically oppressed.

Maybe go in for some criminal justice reform, and less special pleading, eh?

[Greg J]

“As a general matter, it is impossible to reject any of these four approaches with 100% certainty”

Disagree.

From the 14th Amendment:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States

Therefore, neither “Senator or Representative” can be “offices” “under the United States”.

So the Maximalist view is clearly wrong

[David Nieporent]

The 14th amendment shows how the words were understood in 1868 — not 1789.

[Alpheus W Drinkwater]

To say the least, I have been underwhelmed with the historical scholarship displayed in most of Prof. Tillman’s past originalist writings. I’ll approach this with an open mind, but I hope he makes a better attempt at neutral and complete historical research this time, instead of cherry-picking nuggets that support his thesis. The abstract does not sound promising.