Justice Thomas Explains Why The President, Vice President, Speaker and Senate President Pro Tempore Cannot Be "Officers of the United States"

Justice Thomas demonstrates why Justice Scalia erred in his letter to Tillman.

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

In Trump v. United States (July 1, 2024), Justice Thomas wrote a concurrence that opined on the constitutionality of the Special Counsel's appointment. 

The Constitution's Appointments Clause provides:

[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: 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.

Justice Thomas made several observations about the Appointments Clause.

First, Justice Thomas wrote: 

Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be "established by Law." [FN1]

[FN1] Although a Government official may also be a "nonofficer employe[e]," I set aside that category because it is difficult to see how an official exercising the Department of Justice's duties to enforce the criminal law by leading a prosecution could be anything but an officer. Lucia v. SEC (2018) (Thomas, J., concurring); see SW General (opinion of Thomas, J.). If the Special Counsel were a nonofficer employee, the constitutional problems with this prosecution would only be more serious. For now, I assume without deciding that the Special Counsel is an officer. [slip op. at 3.]

It is indeed quite problematic for a "nonofficer employee" to exercise the powers of an "Officer of the United States" who can lead a criminal prosecution. The Special Counsel, for example, is granted the powers of a United States Attorney. If the Special Counsel is merely a "nonofficer employee" exercising the powers of an "Officer of the United States," then the associated "constitutional problems" are, indeed, "serious." 

We appreciate that Justice Thomas only "assumed without deciding" that the "Special Counsel is an officer" of the United States, and not a "nonofficer employee." But there is an argument that the Special Counsel, which is a non-continuous position, cannot be an officer at all. We have raised that argument in an amicus brief before the U.S. District Court for the Southern District of Florida. Blackman also presented oral argument on this issue on June 21, 2024.

Second, Justice Thomas observed that the Constitution establishes a limited number of positions:

The Constitution itself creates some offices, most obviously that of the President and Vice President. 

No statute was needed to establish the presidency or vice presidency. We could add to this list the Speaker of the House and Senate President Pro Tempore. We have long taken the position, and for several independent reasons, that these four positions, as well as rank-and-file members of Congress, are not "Officers of the United States." One of those reasons is that these positions were not established "by law," which means, "by statute," but rather, these positions were established by the Constitution itself.

Additionally, the text provides that "Officer of the United States" positions "shall be established by Law." The word "shall" suggests some future action after the Constitution went into effect. By contrast, the elected federal apex positions were established by the Constitution. No future federal legislative action was needed to establish these positions.

Third, Justice Thomas agreed with part of our reading of the Appointments Clause: "Officers of the United States" must be established "by law." Thomas wrote:

Although the Constitution contemplates that there will be "other Officers of the United States, whose Appointments are not herein otherwise provided for," it clearly requires that those [other] offices "shall be established by Law." §2, cl. 2. And, "established by law" refers to an office that Congress creates "by statute." Lucia v. SEC (2018) (Thomas, J., concurring); see also United States v. Maurice (CC Va. 1823) (Marshall, C. J.).

The necessary consequence of Thomas's position is that the President, the Vice President, as well as the Speaker of the House and the Senate President pro tempore are not "Officers of the United States." They can't be, because their positions were not established by law. 

You may think Justice Thomas' and our position is obvious. But Justice Scalia's much vaunted letter to Tillman in 2014, which we published in 2023, took just the opposite position. Scalia wrote that the President, Vice President, Speaker, and Senate President Pro Tempore are  "Officers of the United States." On this point, Thomas was correct, and Scalia was incorrect: "Officers of the United States" must be established by statute. The President, Vice President, Speaker of the House, and Senate President Pro Tempore, as well as rank-and-file members of Congress, are not established by statute. These stations are elected apex federal officials. In contrast to elected apex officials, as a general matter, "officers of the United States" and officers under the United States are appointed by and responsible to elected apex officials.

Moreover, I think we can understand Justice Thomas to reject the position that the President is somehow "appointed"—that is, the President's appointment "is otherwise provided for." We think Thomas would agree with the conventional view that the President is not appointed; rather, the President is elected by electors. By contrast, during the Section 3 litigation, some people argued that the President is appointed, rather than elected. But that argument has quickly faded from our collective sight.

Fourth, we wrote above that Thomas only agrees with part of our reading of the Appointments Cause. Thomas suggests that there may be other "officers of the United States" whose appointments are not provided for in Article II, Section 2, which includes the Appointments Clause. We read the text differently from Justice Thomas. In our view, the phrase "not herein otherwise provided for" is a null set. There are no "officer of the United States" positions filled by mechanisms beyond Article II, Section and the Appointments Clause.  Rather, the "not herein otherwise provided for"-language is telling the reader that there are no "Officers of the United States" which are provided for elsewhere. All of the "Officers of the United States" are provided for in Article II, Section 2. If Thomas (and others) were correct on this point, the language in the Appointments Clause would be: "except for those Appointments which are not herein otherwise provided for," but it does not say that. Rather, it says: "whose Appointments are not herein otherwise provided for" telling the readers that Article II, Section 2 processes are the exclusive means for filling "officer of the United States" positions.

Thomas does not tell us what those other officers are whose appointments may be provided for elsewhere in the Constitution. His language, as we understand it, rules out the President, Vice President, and also the Speaker and President Pro Tempore, because all those positions are not established "by law." So one wonders: What positions does Justice Thomas have in mind? Perhaps Justice Thomas will address this specific point in a future opinion. In our view, "officers of the United States," principal and inferior, must be established by law, and must be appointed pursuant to the processes spelled out in Article II, Section 2. If a position is not appointed pursuant to Article II, Section 2 procedures, and is not established by statute, it cannot be an "Officer of the United States."

Trump v. United States did not present an Appointments Clause challenge. But this issue is pending before the U.S. District Court for the Southern District of Florida.