A Response to John Mikhail on "Officers of the United States"—Part I

The issues, arguments, and evidence raised by Mikhail has already been addressed by our scholarship. This evidence was not "ignored or overlooked."

[This post is co-authored with Professor Seth Barrett Tillman]

On Monday, February 19, 2024, Professor John Mikhail wrote a post on Balkinization titled, A Reality Check on "Officer of the United States" at the Founding. His post begins:

The Supreme Court seems poised to reverse Colorado's decision to exclude Donald Trump from its Republican presidential primary ballot on grounds other than that Trump did not take the right kind of oath to support the Constitution. Nevertheless, one or more of the Justices might still be inclined to agree with Trump that the President is not an "officer of the United States" within the meaning of Section Three of the Fourteenth Amendment. Trump prioritized this argument in his briefs to the Court, drawing primarily on the scholarship of Seth Barrett Tillman and his co-author, Josh Blackman. While I have long admired the detailed work that Professors Tillman and Blackman have done on this topic, I remain unconvinced by their core argument that this term refers only to appointed officials, not elected officials. In this post, I outline some of the reasons why, drawing upon research that I have pursued for many years on the Officers of the United States to which the Necessary and Proper Clause refers. Much of the evidence I discuss here has been ignored or overlooked in the existing scholarship on Section Three, and most of it does not appear in any of the briefs in Trump v. Anderson. (emphasis added).

We appreciate that Mikhail thought our scholarship was "detailed," but we were surprised by his conclusion. Could it be that we have "overlooked"" leading evidence to the contrary? Or worse, were we aware of this contrary evidence, yet consciously chose to "ignore"? No. We have addressed in our scholarship almost all of the arguments that Mikhail advances in his post. He does not indicate with any specificity what evidence was "ignored or overlooked" in the literature by others or by us. Perhaps Mikhail is not persuaded by our prior publications and responses. But that's quite a different claim from asserting that something significant was "ignored or overlooked."

Mikhail's post closes with this admonition: "the Justices should think long and hard before declaring that the President of the United States is not an Officer of the United States for the purposes of Section Three." Were Mikhail merely making intellectual points about an abstract legal question, we would be inclined to not reply with such rapidity.  Indeed, Mikhail has had the opportunity to put his thoughts into writing on these issues since circa 2017. Here, at the eleventh hour, after briefing and oral argument in Trump v. Anderson, after the decision has already been assigned to a Justice and is likely substantially drafted, this is yet another attempt at rushed scholarship. We view recent posts by Mark Graber and others in a similar fashion. We use this opportunity to respond to Mikhail's primary points.

The Vice President Took An Oath As President of the Senate

Mikhail writes that Vice President Adams took his oath as an "Officer of the United States" pursuant to Article VI. Here, Mikhail draws an inference from the fact that in 1789, Vice President Adams took an oath, and Article VI provides an oath for "Officers of the United States." We do not think this inference is supported. The first oaths statute provided the oath for several positions that are not "Officers of the United States," including the President of the Senate, the Clerk of the House, and the Secretary of the Senate. The better inference is that the Vice President, like the Clerk of the House and Secretary of the Senate, took their oaths as legislative officers. The first oaths statute does not expressly impose a statute on the Vice President, but it does expressly impose an oath on the President of the Senate. 1 Stat. 23, Sects 1-2. Furthermore, that statute imposes two separate oaths on the Clerk and Secretary. None of these positions are "officers of the United States." 

Mikhail does not address these oaths, the fact that Congress imposed them on positions beyond the remit of Article VI; and, indeed, imposed more than oath on some of these positions. Rather, he just assumes that the Vice President takes the oath imposed by Article VI and the first oaths statute as an "officer of the United States." That's a just so story. The first oaths statute has no provision applicable to "officers of the United States;" rather, it imposes an oath "officers … under the Authority of the United States." 1 Stat. 23, Sect. 4. And that oath is only imposed on "appointed" officers. Vice Presidents are elected, not appointed. Id. Mikhail produces no evidence that John Adams or anyone else circa 1789 thought that the oaths statute's generic "officers appointed … under the authority of the United States" reached the vice presidency. Nor does he, in any way, deal with the substantial textual hurdles his interpretation faces. Moreover, he does not explain why he rejects the view that the statute imposes an oath on the Vice President in his role as President of the Senate–which is exactly what the statute says. Occam's Razor? 

Moreover, on several prior occasions, we have addressed the position of the Vice Presidency within the taxonomy of the Constitution's divergent "office"- and "officer"-language. We expressly addressed the vice presidency in our recently filed Supreme Court amicus brief:

Vice President John Adams also did not take an Article VI Oath. Rather, as President of the Senate he took his exclusive oath as a legislative officer, as mandated by the Rules of Proceedings Clause and the Oaths Act (1789). [Blackman & Tillman,] Part III, supra, at 424–28. (emphases added).

Blackman also explained our views on the position of the vice presidency in the context of a recent blog post discussing the Trump v. Anderson oral arguments. And Blackman articulated this position during the Originalism Works-in-Progress conference. 

Perhaps Mikahil may not be persuaded by our argument, but we have not "ignored or overlooked" his argument. We do not think Mikhail will or should persuade the Justices if only because he does not address contrary views and authority. 

"Not Herein Otherwise Provided For"

The Appointments Clause states:

[The President] … shall nominate, and by and with the Advice and Consent of the Senate, 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 …. (emphasis added)

During the Constitutional Convention, in certain early drafts, we think there were two plausible readings of the phrase "not herein otherwise provided for" in the Appointments Clause. First, that phrase referred only to those appointed pursuant to what would become the Article II, Section 2 procedures. Second, that phrase could also refer to appointed positions filled pursuant to other mechanisms spelled out in the Constitution—mechanisms beyond Article II, Section 2. In our view, the latter reading was possible earlier in the convention, but that reading was foreclosed by other changes made to the Constitution before its language was finalized. By the end of the convention, only the former reading was possible. And there are many Supreme Court precedents that support our position. This reading of the Appointments Clause, that is, that Article II, Section 2 procedures are the exclusive mechanism to fill "officer of the United States" positions, has been repeatedly affirmed by the Supreme Court. (And these decisions have not been overruled, or even questioned—until litigation involving Trump began.) For example, in Smith v. United States (1888) (Field, J.), a unanimous Supreme Court held: 

An officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the Constitution…. What we have here said is but a repetition of what was [in other prior Supreme Court decisions] authoritatively declared.

Moreover, the Court's reading flows from the Appointments Clause's text. The clause's "not herein otherwise provided for" does not stand alone; rather, it is immediately followed by: "and which shall be established by Law." Thus the provision reads: "whose Appointments are not herein otherwise provided for, and which shall be established by Law." First, "by law" means by statute, so whatever this language applies to, it cannot apply to other positions created by the Constitution. It only applies to positions created post-ratification by congressional statute. Second, even if this language extended to "officer of the United States" positions filled by procedures outside of Article II, Section 2 procedures, the language here only extends to "appointed" positions. Presidents are elected, not appointed. 

Mikhail's Balkinization post does not address any of these points. He does not address prior Supreme Court precedent. He apparently subscribes to the new view: that the Constitution's text does not distinguish appointed officers from elected officials because appoint and elect are used indiscriminately. But this new view was created only in the last few weeks. And without it, Mikhail's position fails. Finally, Mikhail focuses exclusively on the clause's "not herein otherwise provided for" language, and he has nothing to say about the text which immediately follows: "and which shall be established by Law." If you ignore text, you can arrive at any (preferred) outcome. But the goal, we think, is to come up with an interpretation that faithfully adheres to the entire constitutional text.

Again, the argument launched here by Mikhail regarding the drafting history is one we have addressed on prior occasions. You can read Blackman's February 11, 2024 post.  In that post, Blackman stated: 

Even if the phrase "not otherwise provided for" in the draft Appointments Clause [at the Constitutional Convention] had referred to elected officials before September 4, [1787] that possible meaning was foreclosed after September 4. Now, [that is, after September 4, 1787] 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 "[not herein otherwise] provided for" language to those positions that would be appointed through Article II, Section 2 procedures.

If you want to dig further, you can review the drafting history we have sketched in Part III of our series (pp. 387-390). Mikhail asserts that the position he put forward in his post have been "ignored or overlooked." In fact, we have addressed these points on several occasions.

Mikhail also writes that Justice Scalia (obm) was right when he asserted that the President was an "Officer of the United States" whose appointment was not provided for in Article II, Section II. The problem here is that Justice Scalia also thought that the Speaker of the House and the Senate President Pro Tempore were also "Officers of the United States" whose appointments are not provided for in Article II, Section 2. Scalia's two positions spring from the same interpretive position. Jason Murray, counsel for the Colorado voters, abandoned that argument from the podium. Why? Because if the Speaker and Senate President Pro Tempore are "officers of the United States" and if every officer of the United States also holds an "office under the United States," then it follows that no member of House can be chosen Speaker and no member of the Senate can be chosen Senate President Pro Tempore. U.S. Const. Art. I, Section 6, Clause 2.  Scalia's position is almost a total non-starter. The one way to save Scalia's position would be for its proponents to acknowledge that the meaning of "officer of the United States" is not identical to "office under the United States." But they won't admit that. If they do, their whole approach to constitutional interpretation, going back to Professor Akhil Amar and Professor Vikram Amar's 1995 article in Stanford Law Review, was entirely wrong. And this is something neither Mikhail, nor the Amars, nor their intellectual allies are willing to do. 

Simply put: Scalia was wrong. We all make mistakes—especially when one is repeatedly noodged by an obscure foreign academic suggesting that you retract an opinion of the Court. Scalia was only human. (More Scalia-Tillman correspondences are likely to emerge in due course.) 

Undoubtedly, Mikhail still may not be persuaded by our reading of the Constitution and the Appointments Clause.  But his position was not "ignored or overlooked." Rather, the issue raised by Mikhail is one we have repeatedly addressed on prior occasions. For example, on February 11, 2024, Blackman published a post titled, "Why Does The Phrase 'Not Herein Otherwise Provided For' Appear In The Appointments Clause?" Blackman noted that his February 11, 2024 post on the Appointments Clause was inspired, in part, by a question Mikhail asked during the 2024 Originalism Works-in-Progress Conference. Mikhail's Balkinization post restates the points he raised at the conference, without acknowledging Blackman's in-person response, or responsive blog post. Indeed, in his February 19, 2024 post, Mikhail simply repeats comments directed to us during the 2020 Originalism Works-in-Progress Conference. Why is it that Mikhail, only now, has decided to write something on this issue? 

Misreading Justice Story

Mikhail writes that Justice Story, in Section 789 of his Commentaries, "referr[ed] to the President and Vice President as officers of the United States." Mikhail supplies no quotation. Here is Section 789. You can read it. You will see that there is no reference to the President or Vice President. You will also see that there is no express reference to "officers of the United States." Section 789 states:

Section 789. Who are "civil officers," within the meaning of this constitutional provision, is an inquiry, which naturally presents itself; and the answer cannot, perhaps, be deemed settled by any solemn adjudication. The term "civil" has various significations. It is sometimes used in contradistinction to barbarous, or savage, to indicate a state of society reduced to order and regular government. Thus, we speak of civil life, civil society, civil government, and civil liberty; in which it is nearly equivalent in meaning to political. It is sometimes used in contradistinction to criminal, to indicate the private rights and remedies of men, as members of the community, in contrast to those, which are public, and relate to the government. Thus, we speak of civil process and criminal process, civil jurisdiction and criminal jurisdiction. It is sometimes used in contradistinction to military or ecclesiastical, to natural or foreign. Thus, we speak of a civil station, as opposed to a military or ecclesiastical station; a civil death, as opposed to a natural death; a civil war, as opposed to a foreign war. The sense, in which the term is used in the constitution, seems to be in contradistinction to military, to indicate the rights and duties relating to citizens generally, in contradistinction to those of persons engaged in the land or naval service of the government. It is in this sense, that Blackstone speaks of the laity in England, as divided into three distinct states; the civil, the military, and the maritime; the two latter embracing the land and naval forces of the government. And in the same sense the expenses of the civil list of officers are spoken of, in contradistinction to those of the army and navy.

Again, Mikhail stated that Section 789 of Story's Commentaries" referr[ed] to the President and Vice President as officers of the United States . . . ." We see no basis for his conclusion, and we are not surprised that Mikhail's naked assertion comes absent any quotation or explanation supporting his position. (We know, from experience, what the reaction would be if we had characterized a source in this manner: we would be pilloried by both academics and on social media.) 

To be charitable, we think Mikhail may have meant that the President could fit under Story's understanding of a "civil officer" in Section 789. But even if true, so what? "Civil officer" and "officer of the United States" are not co-extensive terms. Here too, Mikhail assumes what he needs to show: that the Constitution's divergent usage with regard to "office"- and "officer"- all mean the same thing. He cannot just assume that problem away, and then ascribe his contestable position to Story. 

More importantly, Mikhail's argument is incomplete. In a subsequent section, Story further elaborates on what an "Officer of the United States" is. In Section 791, Story excludes the President from that category based on his understanding of the Blount case and based on multiple provisions of the Constitution's 1787 text. Story states: 

Section 791. A question arose upon an impeachment before the senate in 1799, whether a senator was a civil officer of the United States, within the purview of the constitution; and it was decided by the senate, that he was not; and the like principle must apply to the members of the house of representatives. This decision, upon which the senate itself was greatly divided, seems not to have been quite satisfactory (as it may be gathered) to the minds of some learned commentators. The reasoning, by which it was sustained in the senate, does not appear, their deliberations having been private. But it was probably held, that "civil officers of the United States" meant such, as derived their appointment from, and under the national government, and not those persons, who, though members of the government, derived their appointment from the states, or the people of the states. In this view, the enumeration of the president and vice president, as impeachable officers, was indispensable; for they derive, or may derive, their office from a source paramount to the national government. And the clause of the constitution, now under consideration, does not even affect to consider them officers of the United States. It says, "the president, vice-president, and all civil officers (not all other civil officers) shall be removed," &c. The language of the clause, therefore, would rather lead to the conclusion, that they were enumerated, as contradistinguished from, rather than as included in the description of, civil officers of the United States. Other clauses of the constitution would seem to favour the same result; particularly the clause, respecting appointment of officers of the United States by the executive, who is to "commission all the officers of the United States;" and the 6th section of the first article, which declares, that "no person, holding any office under the United States, shall be a member of either house during his continuance in office;" and the first section of the second article, which declares, that "no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector." It is far from being certain, that the convention itself ever contemplated, that senators or representatives should be subjected to impeachment; and it is very far from being clear, that such a subjection would have been either politic or desirable.

Section 791 was widely studied and cited throughout the nineteenth century, including by those who served in the Reconstruction Congress. Mikhail does not challenge this premise. Rather, he seeks to demonstrate that Story was actually wrong—or, at least, that Story's views were not consistent with the drafting of the Constitution, which Story had no access to. Mikhail states: 

Diligent though he was, Story did not have the wealth of easily searchable resources about the formation of the Constitution that we possess today. As a result, when he published his Commentaries in 1833, he could not test his tentative theories about the original or intended meaning of "officers of the United States" against this body of evidence. We can do this, however, and if one does, the best explanation that emerges is unlike the one Story felt inclined to adopt in 1833. 

To be clear, Madison's notes on the convention were only published in 1840, after Story's Commentaries had been published in 1833. See Blackman & Tillman, Part III, at 399. Story's failure to review these records was not due to his lack of "diligence." He could not review books that were not published!

Worse still, Mikhail's argument is anachronistic. What matters for purposes of Section 3 of the Fourteenth Amendment is how Section 3's Framers and ratifiers would have understood the phrase "Officers of the United States." And we know those Framers and ratifiers discussed Justice Story's Commentaries. Even if Story's understanding of the 1787 Constitution was somehow incorrect (and we do not think he was), that matters little towards understanding the original public meaning of Section 3. If Section 3's Framers, ratifiers, and the contemporaneous public took Story's view on board, then that is what should inform our understanding of Section 3. In other words, the correctness of Story's Commentaries may have some bearing on the original meaning of the Impeachment Clause, but the correctness of Story's Commentaries has no bearing on the original meaning of Section 3.

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A second part will follow.