Biden Office of Legal Counsel Departs From Obama-Era opinions, and Reverts to Reagan-Era Opinions, on the Difference Between "Officer of the United States" and "Office under the United States."

We think OLC paid close attention to the Section 3 litigation, and did not want to be left defending a position that might be rejected by the Supreme Court

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

In the waning days of the Biden presidency, there has been a flurry of new Executive Branch decisions with constitutional implications. President Biden determined that he had the power to pardon his son for any conceivable federal offense committed during the past decade. President Biden also "affirmed" that the proposed Twenty-Eighth Amendment is part of the Constitution, even though the Archivist of the United States has not certified it. President Biden has refused to take care that the TikTok ban is faithfully executed, even after the Supreme Court upheld the statute Biden himself signed into law. Who knows what else the final few hours will bring?

During this time, the Office of Legal Counsel ("OLC") has also been busy. On January 16, 2025, OLC issued a new opinion signed by Assistant Attorney General Christopher C. Fonzone. It is titled "The Test for Determining 'Officer' Status Under the Appointments Clause." (This opinion came only one day after the Department of Justice filed its Eleventh Circuit merits brief in defense of the federal qui tam statute.) Yes, even as the rest of the administration exits stage left, OLC is still thinking about what Justice Kagan derided as "officer stuff." We realize that many readers are quite tired of our posts on this topic. But as long as the Executive Branch continues to opine on the "officer" issue, we will persist too.

A fulsome analysis of the opinion will wait for another time, including the analysis of the qui tam statute, and the line between officer and employee. Here, we want to focus on a single sentence in footnote one. (The most thought-provoking parts of OLC opinions tend to be reserved for footnotes.)

[W]e note that, although the Constitution makes several references to the term "office" or "officer" outside the Appointments Clause, this memorandum does not address whether or to what extent any such references should be read consistent with the term "Officer[] of the United States" in the Appointments Clause. See, e.g., Special Government Employee Serving as Paid Consultant to Saudi Company, 40 Op. O.L.C. 1, 4–5 (2016) (discussing the relationship between an "Office of Profit or Trust" under the Emoluments Clause and an "Officer" under the Appointments Clause).

Here, OLC seems to acknowledge there may be a difference between a position held by an "Officer of the United States," who is appointed pursuant to the Appointments Clause, and an "Office of Profit or Trust under [the United States]" that is covered by the Foreign Emoluments Clause. If these two categories of positions were co-extensive, this footnote would not have been necessary. But OLC expressly stated that they are not resolving this issue, which implies that this question has not been settled by the federal courts or by prior Executive Branch guidance.

OLC didn't have to say anything at all about this point. But OLC did. We suspect that the lawyers in OLC paid close attention to the 2023–2024 disqualification litigation based on Amendment XIV, Section 3. For example, during oral argument in Trump v. Anderson, Justice Gorsuch noted that "[a] lot hinges on the difference between the term 'office' and 'officer.'" Gorsuch also asked Trump's counsel, Jonathan Mitchell, to offer a "theory . . . from an original understanding or a textualist perspective why those two terms ['Officer of the United States' and 'Office under the United States'], so closely related, would carry such different weight?" Moreover, we suspect that OLC may have been familiar with some of the textual and other arguments that we have been raising for more than a decade. Indeed, these arguments were raised by Trump's lawyers and amici supporting Trump before elections administrators and lower federal courts. Albeit, Trump's counsel did not press all of these arguments at the Supreme Court.

The Biden OLC is not trying to help Trump, but OLC does not want to be left on the wrong side of this legal issue. OLC stated that its current view on the Appointments Clause is consistent with recent Supreme Court precedent and earlier OLC opinions. Whether that is fully accurate or not is another matter. But OLC does not want to be in a position where the Supreme Court expressly rejects something that OLC has concluded. That sort of hit is bad for the institution. So here, at least, OLC hedges on whether there is a difference between "Officer of the United States" and "Office under the United States." This distinction is at the core of much of our individual and joint scholarship and advocacy.

Had OLC not taken a position on this particular issue before, the remainder of the footnote would be unremarkable. However, in the past, OLC has taken a position on this issue. Indeed, OLC's view on this point has oscillated between the Obama and Reagan Administrations, as Seth described in a 2013 article. Let's walk backwards.

As longtime readers may recall, President Barack Obama was nominated for the Nobel Peace Prize shortly after his first term began. There was some debate about whether his accepting the prize would violate the Foreign Emoluments Clause. In December 2009, OLC issued an opinion titled "Applicability of the [Foreign] Emoluments Clause and the Foreign Gifts and Decorations Act to the President's Receipt of the Nobel Peace Prize." It was authored by Acting Assistant Attorney General David Barron. The opinion concluded, for reasons not relevant to this post, that Obama's acceptance of the prize did not violate the Foreign Emoluments Clause. However, the opinion also stated in an ipse dixit that "[t]he President surely 'hold[s] an[] Office of Profit or Trust[] [under the United States]' . . . ." (emphasis added) (quoting Article I, Section 9, Clause 8). This opinion did not recognize any distinction between an "Officer of the United States" and an "Office under the United States." 

A 2010 opinion, also by Barron, observed that "only those persons considered officers within the meaning of the Appointments Clause . . . may be subject to the [Foreign] Emoluments Clause . . . ." (emphasis added). Again, this passage seems to suggest that positions covered by the Appointments Clause ("Officers of the United States") are coextensive with positions covered by the Foreign Emoluments Clause ("Offices . . . under the United States"). 

At a minimum, the 2025 Biden OLC opinion is in tension with the 2010 Nobel Prize Opinion. The 2009 and 2010 OLC opinions put forward the position that "Officer of the United States" and "Office . . . under the United States" were coextensive categories. The 2025 OLC opinion puts forward the position that this issue has not been resolved. Yet, the 2025 Biden OLC opinion does not cite, let alone acknowledge any contrast, with the Obama-era opinion. Likewise, these Obama-era opinions failed to acknowledge a series of OLC opinions from the Reagan Administration that took a very different approach.

In 1982, Deputy Assistant Attorney General Robert Shanks affirmed that different "language" relating to office in different constitutional clauses relates to different "purpose[s]." In 1986, Assistant Attorney General Charles Cooper observed that "[p]rior opinions of this Office have assumed without discussion that the persons covered by the [Foreign] Emoluments Clause were 'officers of the United States' in the sense used in the Appointments Clause, U.S. Const. art. II, § 2, cl. 2." However, Cooper recognized that the 1982 opinion "did advise that a person may hold an 'office of profit or trust' under the [Foreign] Emoluments Clause without necessarily being an 'officer of the United States' for purposes of the Appointments Clause." And in 1988, Deputy Assistant Attorney General John McGinnis wrote that the Foreign Emoluments Clause "applies to all persons holding an office of profit or trust under the United States, and not merely to that smaller group of persons who are deemed to be 'officers of the United States' for purposes of [the Appointments Clause in] Article II, Section 2 of the Constitution." (emphasis added). Cooper and McGinnis, like the position Tillman has put forward since circa 2007, argued that the category of "Office[s] . . . under the United States" is broader that the category of "Officers of the United States." In other words, some people who are "Officers of the United States" do not hold "Office[s] . . . under the United States." Moreover, some people holding positions in the federal government are neither "Officers of the United States" nor hold "Office[s] . . . under the United States." These terms are not co-extensive, and they are not all-encompassing.

In our view, the Reagan-era opinions are correct, the Obama opinions are poorly-reasoned, and the Biden-era opinion acknowledges that the issue is not settled. In 2019, the Congressional Research Service shifted towards the Tillman-Blackman position. Also in 2019, during the first Trump Administration, the Department of Justice Civil Position shifted towards the Blackman-Tillman position. Time will tell if the Office of Legal Counsel under the Trump-47 Administration makes a similar move.