Offices and Officers of the Constitution Part VI: The Ineligibility Clause

The latest in the ten-part Tillman-Blackman series on Offices and Officers of the Constitution

I am pleased to announce that the South Texas Law Review has published the sixth installment in the Tillman-Blackman series on the offices and officers of the Constitution.

Here is the abstract of Offices and Officers of the Constitution Part VI: The Ineligibility Clause.

This Article is the sixth 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. The third installment analyzed 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. Part IV traced the history of the "Office . . . under the United States" drafting convention. Part V considered the meaning of the phrase "Office . . . under the United States," which appears in the Incompatibility Clause, the Impeachment Disqualification Clause, the Foreign Emoluments Clause, and the Elector Incompatibility Clause. This sixth installment, Part VI, will turn to the phrase "Office under the Authority of the United States," which appears uniquely in the Ineligibility Clause. The Ineligibility Clause provides, "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

This Article proceeds in five sections. Section I describes the drafting history of the Ineligibility Clause during the Constitutional Convention This drafting history lends some support for our view that the phrase "any civil office under the Authority of the United States" refers to a category of appointed, and not elected, positions. Section II contends that the President and Vice President do not hold "civil offices under the Authority of the United States." This argument flows from the text of the Ineligibility Clause, which applies to "appointed" positions. As a general matter, the President and Vice President are not appointed; rather, they are elected by electors, or they are elected or chosen by the House and Senate.

Section III puts forward the position that members of Congress do not hold "civil offices under the Authority of the United States." If senators or representatives held "civil offices under the Authority of the United States," then Congress might be able to manipulate its own membership by modifying the compensation for these elected positions. Generally, members of Congress are "elected," and not "appointed." Section IV identifies several positions covered by the Ineligibility Clause. In our view, the phrase "Office under the Authority of the United States" refers to a specific category of appointed officers—a category more expansive than both "officers of the United States" and "office . . . under the United States." Section V turns to the interaction between the Ineligibility Clause and the Religious Test Clause. The latter provides "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." There may be a handful of irregular positions that are an "Office under the Authority of the United" but not an "Office under the United States" or a "public trust under the United States." Such positions would not be subject to the Religious Test Clause.

The Ineligibility Clause is very useful to understand the difference between the meaning of "elect" and "appoint."

Parts seven through ten of our series should be published over the next year or so. This project began in earnest in 2017, and our first installment was written in 2020. Even though the courts may have lost interest in officer-stuff, we have not!