The Volokh Conspiracy
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Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses
A synthesis of our prior writings, and clarification on the meaning of “Officers of the United States.”
[This post is co-authored with Seth Barrett Tillman.]
The Constitution of 1788's original seven articles include twenty-two provisions that refer to "Offices" and "Officers." Since 2008, Tillman has been engaged in the continuing project: an analysis of the Constitution's "Office"- and "Officer"-language. Blackman joined this intellectual project about six years ago. Much of our research has already appeared in law review articles, amicus briefs, opinion editorials, and other writings. But we did not have a single compendium that systematically articulated our position. Initially, we considered writing a single law review article that touched on all aspects of our work, but we quickly realized that approach would far be too long for such a publication. In 2020, we adopted a new strategy: we would publish a ten-part series that would explain how we approach the offices and officers of the Constitution. And we are grateful to the editors of the South Texas Law Review, who committed to this multi-year endeavor.
We published Parts I and II in 2021. The first installment introduced the series. The second installment identified four approaches to understand the Constitution's divergent "Office"- and "Officer"-language. Parts III and IV will soon be sent to the printer. We have posted a near-final version of Part III to SSRN. (Part IV will be posted shortly). This third installment focuses on the four provisions of the Constitution of 1788 that use the phrase "Officers of the United States": the Appointments Clause, the Impeachment Clause, the Commissions Clause, and the Oath or Affirmation Clause.
The article is long—106 pages. We tried to be thorough and complete. Here is the abstract:
This Article is the third 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. The second installment identified four approaches to understand the Constitution's divergent "Office"- and "Officer"-language. This third installment will analyze the phrase "Officers of the United States," which is used in the Appointments Clause, the Impeachment Clause, the Commissions Clause, and the Oath or Affirmation Clause.
This Article proceeds in six sections. Section I describes our methodology, which includes textualism, original public meaning originalism, original methods originalism, and consideration of historical practices during the founding-era and later-in-time. Section II explains that the phrase "Officers of the United States" is defined by the Appointments Clause. This phrase refers to appointed positions in the Executive and Judicial Branches. Our position here is supported by the drafting history of the Appointments Clause, as well as Supreme Court precedent. Section III turns to the Impeachment Clause, which applies to "civil Officers of the United States." This latter category refers to non-military appointed positions in the Executive Branch and Judicial Branch. Members of Congress, as well as appointed positions in the Legislative Branch, are not "civil Officers of the United States," and therefore such positions cannot be impeached.
Section IV considers the Commissions Clause, which requires the President to commission "all the Officers of the United States." There is a longstanding practice of the President's commissioning appointed positions in the Executive Branch and Judicial Branch. But there is no evidence the President has ever commissioned an elected official, including himself. Section V analyzes the Oath or Affirmation Clause, which suggests that Senators and Representatives, as well as the President, are not "Officers of the United States." Finally, Section VI focuses on the Recess Appointments Clause. This provision does not use the phrase "Officers of the United States," and it is not clear whether recess appointees are "Officers of the United States."
These eight parts support our position: in the Anglo-American legal tradition, the phrase "Office under the . . ." was, and remains, a commonly-used drafting convention that refers to appointed officers. This phrase does not refer to elected officials.
Much of this article reproduces our prior writings and positions. Section II elaborates and clarifies our position on the meaning of: "Officers of the United States." Here is the overview of Section II:
In our view, the phrase "Officers of the United States" refers to appointed positions in the Executive and Judicial Branches. This language does not refer to appointed positions in the Legislative Branch, such as the Clerk of the House of Representatives or the Secretary of the Senate. The Appointments Clause defines the phrase "Officers of the United States" and, generally, how those officers are appointed: all such appointments are made to positions established by federal statute in the Executive and Judicial Branches. This category includes principal officers and inferior officers. Each of these positions must be created, authorized, or regularized "by law"; that is, by statute through bicameralism and presentment. And all of these positions are filled by appointment, not election. Positions created by the Constitution, including elected officials like the President and Members of Congress, are not created "by law." Therefore, they are not "Officers of the United States."
Our approach is consistent with the drafting history of the Appointments Clause: "Officers of the United States" can only be appointed, not elected. And our approach is also consistent with Supreme Court precedent. We acknowledge that some framers and ratifiers, on some occasions, argued that members of Congress were "Officers of the United States." However, we do not know how widespread this view was. And at the time, prominent framers and ratifiers opposed this view. On balance, the weight of evidence supports our position that "Officers of the United States" are appointed, not elected.
For those who want to see this material elaborating and clarifying our position, jump to page 377.
We welcome comments and feedback on our Article.
Our fourth installment will focus on the "Office . . . under the United States" drafting convention. That language is used in four provisions of the Constitution: the Elector Incompatibility Clause, the Impeachment Disqualification Clause, the Incompatibility Clause, and the Foreign Emoluments Clause. We will discuss those four provisions in detail in the fifth installment.
