The Volokh Conspiracy
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Why Does The Phrase "Not Herein Otherwise Provided For" Appear In The Appointments Clause?
Earlier in the Constitutional Convention, the legislature had the power to appoint judges, ambassadors, and the treasurer. But that power was later stripped.
During oral argument in Trump v. Anderson, counsel for the voters was forced to abandon the claim that the Speaker and the Senate President Pro Tempore were "officers of the United States" whose appointments were not provided for in Article II, Section 2. Patrick Murray referred to those presiding officers as "an exception to the general rule." In doing so, Murray surrendered two of the four positions that Justice Scalia listed in his letter to Tillman.
What about the other two positions in the Scalia letter: are the President and Vice President "officers of the United States" whose appointments are not provided for in Article II, Section 2? Through the Sinecure Clause, Tillman and I have demonstrated that the answer to this question is no. In our view, the phrase "not herein otherwise provided for" is a null set. There are no such offices. The Constitution is telling us that there are not "Officers of the United States" who are provided for elsewhere. All of the "Officers of the United States" are provided for in Article II, Section 2.
During the Originalism Works-in-Progress Conference, I was asked why the Framers would include this phrase if it referred to zero positions. One possible answer can be found in the drafting history of the Appointments Clause. At earlier junctures during the convention, the legislature had the power to appoint different positions, including judges, ambassadors, and the treasurer. These appointments were not provided for in (what became) the Appointments Clause. But over time, the Convention removed the legislature's power to appoint these positions. The power to appoint those positions was given to the President. As a result, the phrase "not herein otherwise provided for" indicated that "Officers of the United States" were only appointed pursuant to the procedures spelled out in Article II, Section II. And to reinforce this point, the phrase, "and which shall be established by law" was added to the Appointments Clause, making clear that the "Officers of the United States" had to be created by statute, and not by the Constitution. There is nothing I've seen in the drafting history to suggest that the phrase "not herein otherwise provided for" refers to (as Scalia suggested), the President, the Vice President, the Speaker, and the Senate President Pro Tempore.
Tillman and I discuss this history in depth in Part III of our series (pp. 387-390):
The drafting history of the Appointments Clause is, admittedly, complex. But it is consistent with our approach.
On May 29, 1787, James Madison introduced the Virginia Plan. The Virginia Plan. The Virginia Plan would have empowered the "National Legislature" to choose judges. 1 Farrand's Records at 21–22. In contrast, at this juncture, the appointment of "executive branch officers" "inhered in the 'Executive rights'" of the "National Executive." Jennifer L. Mascott, Who are "Officers of the United States"?, 70 Stan. L. Rev. 443, 472 (2018) (citing 1 Farrand's Records, supra note 21, at 20–22, 20 n.10). A later proposal put forward this text: "The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the supreme Court." 2 Farrand's Records at 183 (Aug. 6, 1787), 389 n.8 (Aug. 23, 1787); 392–93 (same).
On July 17, 1787, the Committee of the Whole modified what would become the Appointments Clause. Id. at 21. The new text provided that the "National Executive" would have the power "to appoint to offices in cases not otherwise provided for[.]" Id. at 23 (emphasis added). What are the "offices . . . not otherwise provided for"? At this juncture, the text could be read in two fashions. First, those other "offices" are certain positions that would be chosen by the National Legislature, such as judges and the Treasurer. Second, those other "offices" are certain apex elected officials that would not be appointed. Or perhaps both readings were possible in July of 1787. But the Convention would soon foreclose both of these readings.
On August 6, 1787, the Committee of Detail reported on a draft provision in which Congress had the power "[t]o Appoint a Treasurer by ballot[.]" 2 Farrand's Records, supra note 21, at 177, 181–82. On August 17, 1787, there was a motion to remove Congress's powers to appoint the Treasurer. Id. at 315. This motion failed. Id.
On September 4, 1787, the Committee of Eleven moved the power to appoint judges from Congress to the President, in conjunction with Senate advice and consent. Id. at 493, 495; Mascott at 473. That draft text now provided, "The President . . . shall nominate and by and with the advice and consent of the Senate shall appoint Ambassadors and other public Ministers, Judges of the supreme Court, and all other officers of the U.S. whose appointments are not otherwise herein provided for." 2 Farrand's Records at 495, 539–40. It appears that with this revision, the phrase "officers of the U.S." was added to the Appointments Clause. Mascott at 472 ("Drafts of the Appointments Clause did not include the expanded phrase 'officers of the U.S.' until September 4, 1787—during the late stages of the Convention."). And ten days later, on September 14, John Rutledge of South Carolina moved to strike out Congress's power to appoint the Treasurer. 2 Farrand's Records at 612, 614. That officer, Rutledge explained, should be "appointed in the same manner with other officers[]"—that is, by the President. Id. at 614. The motion passed, 8 to 3. Id.
Even if the phrase "not otherwise provided for" in the draft Appointments Clause had referred to elected officials before September 4, that possible meaning was foreclosed after September 4. Now, the phrase "other officers of the U.S." would not refer to positions filled by persons chosen by the Legislature, nor could those "other officers of the U.S." refer to elected officials. These revisions restricted the "provided for" language to those positions that would be appointed through Article II, Section 2 procedures.
Prior to the end of the Convention, two final alterations were made to the Appointments Clause. First, a comma was added between "all other officers of the U.S." and "whose appointments." Second, an additional clause was added at the end: "and which shall be established by Law." This table represents the final two revisions made to the Appointments Clause, with the changes emphasized with bold and underline.
Before the end of the Convention At the conclusion of the Convention [The President] shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States whose Appointments are not herein otherwise provided for: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. [The President] shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The Appointments Clause now provided in its entirety: "[a] [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint [b] Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, [c] whose Appointments are not herein otherwise provided for, [d] and which shall be established by Law." We have divided the Clause into four sections: [a], [b], [c], and [d].
The word "and" is highly significant. That conjunction suggests that clauses [c] and [d] both modify clause [b]. Stated differently, clauses [c] and [d] define which positions can be an "Officer[] of the United States." Clause [c] tells us that "all other Officers of the United States" must be appointed pursuant to Article II, Section 2. The word "all" is not surplusage.[1] And clause [d] tells us these "Officers of the United States" must be "established by law." In other words, those positions—"Officers of the United States"—would be created by statute after the new Constitution came into effect. It follows that these clauses cannot refer to elected officials because such apex positions were created by the Constitution, and not by statute. Indeed, the first President, the first Vice President, and all the members of the First Congress were—quite obviously—all elected prior to the enactment of any federal statutes.
The addition of the comma between clauses [b] and [c], and the addition of clause [d], provide some further support for our construction of the Appointments Clause. Had these alterations not been made, we still think our reading of the Appointments Clause would be the better one. But these changes bolster our construction.
We acknowledge that the drafting history of the Appointments Clause is complicated and messy. Ultimately, we think that drafting history leans towards our position. But even if we were wrong about that history, it is the final, printed Constitution that was sent to the States for ratification, which is "our" law, not the prior drafts.
