The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Offices and Officers of the Constitution, Parts I and II
The first two installments of a planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution.
Seth Barrett Tillman and I have published the first two installments of our planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution. Parts I and II now appear in Volume 61 of the South Texas Law Review. Here are the abstracts:
Offices and Officers of the Constitution, Part I: An Introduction
In this Essay, 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 "Officers of the United States" and "Office[s] . . . 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 each individual clause.
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 Essay, 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.
Offices and Officers of the Constitution, Part II: The Four Approaches
This Article is the second installment of a planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution. The first installment introduced the series. In this second installment, we will identify four approaches to understand the Constitution's divergent "office"- and "officer"-language.
First, under Approach #1, the Intermediate View, the Constitution's references to "offices" and "officers" extend exclusively to positions in the Judicial Branch and in the Executive Branch—whether appointed or elected. But the Constitution's references to "offices" and "officers" do not extend to positions in the Legislative Branch—whether appointed or elected.
Second, under Approach #2, the Maximalist View, the Constitution's divergent "office"- and "officer"-language is used synonymously. And, under this approach, these phrases refer to positions in all three branches, whether appointed or elected.
Third, under Approach #3, the Minimalist View, the Constitution's divergent "office"- and "officer"-language has different meanings. The phrase "Officers of the United States" extends exclusively to appointed positions in the Executive and Judicial Branches. And the phrase "Office . . . under the United States" extends exclusively to appointed positions in all three branches. (The ellipses refer to different words the Framers placed after office but before under: "profit," "trust," and/or "honor"). For more than a decade, Tillman has advanced Approach #3. Blackman was first piqued by Tillman's position shortly after he became a law professor, and he was thereafter persuaded.
Finally, we consider Approach #4, which we refer to as the Clause-Bound View. Under this approach, the "office"- and "officer"-language in each provision of the Constitution should be interpreted in isolation, without regard to how the same or similar language is used elsewhere in the Constitution. For example, the phrase "Officers of the United States" in one clause may have a different meaning than the phrase "Officers of the United States" in another clause.
This Article—at more than 30,000 words in length—is incomplete. Here, we simply introduce our taxonomy. If all goes to plan, the planned ten-part series will be completed circa Spring 2023. At that point, our project will be substantially complete. And, we hope, any remaining significant lingering questions will have been answered.
The first two installments total nearly 130 pages. And we're still not done. Stay tuned for parts three through ten.
