A Reply to Peter Keisler and Richard Bernstein, and Michael Luttig, on Section 3

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

Michael Luttig, who served on the U.S. Court of Appeals for the Fourth Circuit, and as General Counsel of Boeing, has been one of the more vocal proponents of the view that Trump should be disqualified from the ballot. On January 29, Luttig was the lead signatory of an amicus brief to the Supreme Court, which was joined by Peter Keisler, Larry Thompson, Stuart Gerson, and Donald Ayer. Richard D. Bernstein served as counsel of record. 

On Tuesday, Keisler and Bernstein published a guest post on the Election Law Blog. Their Tuesday guest post responds to Trump's reply brief, which had been filed on Monday. And in turn, Trump's Monday reply brief advanced several positions about the Sinecure Clause and the Incompatibility Clause; we had developed the same lines of argument in our post on the prior Sunday. Today, Wednesday, we will respond to several arguments that Keisler and Bernstein made. And tomorrow, Thursday, the Supreme Court will hear oral argument in Trump v. Anderson. 

First, Keisler and Bernstein argue that the Sinecure Clause demonstrates that the words appoint and elect are used in the Constitution "interchangeably." They write, "The Text Of The Sinecure Clause Confirms That The Constitution Uses 'Appointed,' 'Elected,' And 'Chosen' Interchangeably." (And odd comments given that the Sinecure Clause does not use "chosen" at all. We will come back to "chosen" below.) This line of argument is part of their position that the President is an appointed "Officer of the United States" whose appointment is not provided for in Article II, Section 2. The Sinecure Clause, also known as 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 encreased during such time. (emphases added)

On Sunday, we published a post about Section 3 of the Fourteenth Amendment and the Sinecure Clause. U.S. const. art. I, § 6, cl. 2. We see that Trump's reply brief advanced an argument based on the Sinecure Clause (p. 9); the substance of the brief's argument is the same as the one we put forward in our recent post on that clause. (p. 9.) Likewise, Trump's reply brief advanced an argument based on the Incompatibility Clause (p. 13); again, the substance of the brief's argument is the same as the one we put forward in our recent post on that clause. (p. 11).

Keisler and Bernstein contend that "elect" and "appoint" in the Sinecure Clause are used interchangeably. We draw just the opposite conclusion. Where the same sentence uses the phrase "appoint" and "elect," the presumption ought to be that those words have different meanings. Senators and Representatives are elected and "civil Office[s] under the Authority of the United States" are appointed. These words are not interchangeable. 

Second, Keisler and Bernstein acknowledge this argument, but retort that temporary Senators, who are appointed by Governors, are in fact elected.

It is true that the Sinecure Clause refers to Senators and Representatives as "elected." But Article I, Section 3, clause 2 states that when there is a Senate vacancy, the Governor of the State "may make temporary Appointments." Surely, such appointed Senators are considered "elected" so that they are subject to the Sinecure Clause. 

We disagree. We address this point in our earlier post:

In contrast, state executives can make "temporary Appointments" to fill Senate vacancies. Again, the Constitution does not treat the concepts of election and appointment as equivalent. It is an open question whether a temporary senatorial appointment is "elected" for purposes of the Sinecure Clause. We think the answer is "no." In a draft article, we discuss the status of Representative Prentiss Marsh Brown of Michigan, who was appointed to the Senate to fill a vacancy. During a six-week span, Brown received a Senate salary that had been increased during the time he had been elected to the House.

If Keisler and Bernstein have written about Representative/Senator Prentiss Marsh Brown, we would be happy to review their analysis. But absent any support, we do think their sentence, which begins with "Surely," is not justified. We turn to the temporary appointment of Senators in the next point.

Third, Keisler and Bernstein contend that appoint, elect, and chosen are "used interchangeably" in the Constitution. Their post states:

Moreover, while the Sinecure Clause refers to Senators and Representatives as "elected", clauses 1 of Sections 2 and 3 of the same Article refer to Senators and Representatives synonymously as "chosen."   (Similarly, in Article II, section 1, clauses 1 and 3, one way that a President is "elected" is that when no candidate has a majority of electoral votes, the House then shall "chuse" the President.)  And we know from Article II, Section 1 that "appoint" and "choose" are used as synonyms.  Clause 2 states that "Each State shall appoint" presidential electors while clause 4 refers to "chusing the Electors."  In January 1789, four states appointed and chose presidential electors by election by popular vote.  Worley Amici Br. at 16. This trifecta and the Sinecure Clause are consistent with a constitutional mosaic where "appointed," "elected," and "chosen" are used interchangeably.

We disagree. In the Constitution, choose is an umbrella category that includes appointment and election. Appointment and election may have some overlap in common parlance, but these two terms do not have identical meanings in the Constitution. Again, the Sinecure Clause expressly uses "appoint" and "elect" to different effect. Choose is not a term used in the Sinecure Clause. But Choose is used to refer to the selection of several positions in the Constitution. Choose can embrace appoint, and choose can embrace elect, but the fact that choose is an umbrella term does not establish that appoint and elect are interchangeable. Keisler and Bernstein point to no text in the Constitution to show that appoint and elect are interchangeable. The text of the Sinecure Clause is substantial evidence these two terms are not interchangeable. The Sinecure 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 encreased during such time. (emphases added)

Keisler and Bernstein suggest that in the Sinecure Clause, elect and appoint have the same meaning. That may be sometimes true in the abstract. In common parlance, appoint and elect may overlap. But common parlance, even contemporaneous common parlance, should not trump how the Constitution has a specific usage for appointment and a specific usage for election. And the Sinecure Clause shows that this usage usage is more narrow than what is in common parlance. There would be no reason to use appoint and elect in the same sentence if they were used to mean the same thing.

The Constitution uses three primary terms to refer to how positions are filled. These three primary terms are: choose, elect, and appoint.

• Choose, Choosing, and Chosen are used as umbrella terms that sometimes refers to positions filled by an appointment, sometimes refers to positions filled by an election, and, finally, sometimes refers to positions that cannot be clearly characterized as filled by appointment or election. 
• Elect, Election, Elected, Vote by Ballot are used to refer to positions filled by election. 
• Appoint, Appointment, Appointed are used to refer to positions filled by appointment. The Constitution never refers to the President and Vice President as "appointed."

The following table summarizes our results.

Moreover, there is authority from the early Republic to support our position that appoint and elect were not used interchangeably in the Constitution. During the First Congress, Representative Thomas Tucker distinguished the Constitution's use of appoint from elect in regard to how those terms are used in the Constitution, as opposed to popular usage. In a 1791 debate, Tucker is reported to have said:

Mr. Tucker strengthened the remark made by Mr. Sedgwick, by observing that the word appoint and not elect was made use of in that part of the Constitution;—that the use of the first was generally used to express a choice made by a small number and the latter a more general choice.

Philadelphia, Jan. 25. House of Representatives of the United States. Friday, January 14, General Advertiser (Philadelphia), Jan. 25, 1791, at 3; see also Tench Coxe, An Examination of the Constitution for the United States of America 13 (Philadelphia, Zachariah Poulson 1788).

Fourth, Keisler and Bernstein reject the policy concern that a current Congress and an incumbent President could strategically increase the next President's salary as a means to disqualify sitting Senators from the White House. The Respondents' claim that the President is an appointed "civil Office under the Authority of the United States" and so falls under the Sinecure Clause's strictures. On Sunday, our post included this hypothetical about the Respondents' reading of the Sinecure Clause. We wrote:

It is not difficult to imagine that strategic salary increases will be used to render potential presidential candidates in the Senate ineligible. Imagine that in January 2007, the lame-duck Republican majority in Congress voted to increase the President's salary, perhaps through budget reconciliation. If the Respondents are correct, then Senators Barack Obama and Hillary Clinton both could have been made ineligible for the presidency in 2008. (And there is no guarantee that a Saxbe fix would have been approved for them.) 

Trump's reply brief, which was filed on Monday, raised the same concern: 

If this Court holds that presidents and vice presidents are "appointed," then any Senator who became president or vice president before the expiration of his six-year term will have served in violation of the Constitution if the president or vice president's salary had increased during that Senate term but before his "appointment" to office. It would also empower Congress to strategically disqualify sitting Senators from the presidency by voting to increase the president's salary by a small amount. (Reply Br. at 9.)

Keisler and Bernstein respond that such strategic use of the Sinecure Clause has not happened before, and it is unlikely to happen in the future. They wrote:

As to the reply brief's asserted fear that a legislated salary increase for the President and Vice President could be used under the Sinecure Clause to preclude a Senator or Representative from becoming President, there have been no such increases since 2003, despite inflation. And none is in the offing. In our era of divided government and Senate filibusters, it is a fantasy that one party could enact a salary increase for the Presidency, with the then-President's signature, with the purpose of preventing a specific Senator or Representative from the other party from becoming a future President. And the members of Congress by statute could protect their collective ambitions by making any salary increase inapplicable to a President or Vice President who had been a Senator or Representative when the increase was enacted. See 33 Op. O.L.C. 201 (2003). 

We are not so confidently optimistic that today's political system is working as it should be or that if it is working, it will continue to do so. For starters, we suspect that the President's compensation could be increased through the budget reconciliation process, so the filibuster may not be a hurdle. (And, perhaps, a determined majority might entirely gut the Senate filibuster?) But more importantly, if current efforts by Democrats to disqualify Trump from the ballot succeed, we fully expect that Republicans will return the volley. Two teams can play hardball. There is no guarantee that a Republican Congress would approve a "Saxbe fix" to save a Democratic nominee for the presidency. Indeed, the salary would be increased for the express purpose of knocking out potential candidates. And in light of the Presidential Compensation Clause, such a "fix," in order to be timely, would seem to have to be enacted and take effect before the time of the President's inauguration. (The interaction between the Sinecure Clause and the Presidential Compensation Clause creates even more problems for the Respondents' theory of the case, which we hope to address at another time.)

Fifth, the Respondents claimed that the Speaker, President Pro Tempore, the President, and the Vice President are "officers of the United States" whose appointments are not provided for in Article II, Section 2. Resp. Br. at 40 ("The Constitution "otherwise provide[s]" for the "appointment" of the President and Vice President by the electoral college, and the Speaker of the House and President pro tempore of the Senate by Congress."). We surmised that the Respondents latched onto Justice Scalia's 2014 letter to Tillman. 

Unfortunately for Respondents, Justice Scalia erred. We explained that under Scalia's position, i.e., the position adopted by the Respondents just days ago, every presiding congressional officer, that is, the Speaker and Senate President Pro Tempore since 1789 would have violated the Incompatibility Clause. We explained in our Sunday post:

The Incompatibility Clause provides, "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." U.S. Const. Art. I, § 6. The Anderson Respondents, citing Justice Scalia, argue that the Speaker and Senate President Pro Tempore are "Officers of the United States." The Respondents also argue that there is no difference between an "Officer of the United States" and an "Office under the United States." Resp. Br. at 36 (rejecting "Trump's linguistic hair-splitting between 'officer of' and 'office under' the United States.").

Do you see the problem? Did the Respondents even see the problem? If Justice Scalia and the Respondents are correct, members of Congress cannot serve as Speakers and Senate Presidents Pro Tempore, because those positions are "Offices under the United States." But every single presiding officer since 1789 has been a member of Congress. (Indeed, many believe the presiding officers must be members.)

Trump's reply brief made the same point we made. Trump's reply brief stated:

The Speaker of the House and President Pro Tempore of the Senate are "officers" who hold federal "offices." But neither holds an "office … under the United States" because the Incompatibility Clause bars House and Senate members from "holding" such an office. See U.S. Const. art. I, § 6, cl. 2 ("[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."). (Reply Br. at 14 (footnote omitted).)

For the reasons stated above, we believe Respondents and Scalia erred when asserting that the Speaker and Senate President Pro Tempore are "Officers of the United States." We wrote last Sunday and we continue to think that the Respondents will have to abandon, from the podium, their position.

Sixth, in a January 28, 2024 tweet thread, Luttig endorses the Scalia letter:

"whose Appointments are not herein otherwise provided for" means exactly that -- and only that. For purposes of the Appointments Clause, the President appoints all "Officers of the United States" except those whose appointments are otherwise provided for in the Constitution --

— @judgeluttig (@judgeluttig) January 28, 2024

 

Although the thread only mentions the President and Vice President, Luttig does not suggest that Scalia erred about characterizing the Speaker and the Senate President Pro Tempore as "Officers of the United States." If anything he adopts the entire letter, which was only one paragraph long. If Luttig now thinks Scalia was wrong about the Speaker and Senate President Pro Tempore, he has not so indicated.

However, on Tuesday, Keisler and Bernstein stated that the Speaker and Senate President Pro Tempore are obviously not "Officers of the United States." By doing so, they expressly rejected Justice Scalia's conclusion.  Keisler and Bernstein write:

[T]he Constitution never uses the phrase "of the United States" after referring to the Speaker or the President Pro Tempore. Rather, the Speaker is one of the "Officers" of the House, Art. I, § 2, cl. 5, and the President Pro Tempore is one of the "Officers" of the Senate, Art. I, § 3, clause 5. That the Speaker and President Pro Tempore are never defined as "of the United States" explains why they would not be subject to impeachment as "officers of the United States."

Keisler and Bernstein do not seem to realize that it is their co-author/client, Luttig, who embraced the Scalia letter. Moreover, the Luttig-Keisler-Bernstein brief was ostensibly in support of Respondents. Yet, Respondents expressly argued that the Speaker and Senate President Pro Tempore are "Officers of the United States." Indeed, only one day after Luttig's tweet, the Luttig-Keisler-Bernstein brief favorably cited the Respondents' brief, which had endorsed the Scalia letter. Luttig Br. at 22-23. The positions offered by Luttig and by Keisler-Bernstein are not consistent with one another, and not consistent with Respondents' brief. We have no idea what their position is with regard to the Scalia letter, and neither do they. 

For what it's worth, we agree with Keisler and Bernstein's post on this point: the Speaker and Senate President Pro Tempore are "officers" but are not "officers of the United States." There is a difference between these terms. Yet the Respondents claim these phrases are interchangeable. The Keisler-Bernstein post undermines the Respondents' brief. 

Seventh, we turn to Luttig again. Wednesday's New York Times profile of Tillman included this passage:

But the conservative former judge J. Michael Luttig, in a withering series of posts on X, mocked Mr. Trump and his supporters for having "put all of their eggs in Blackman's and Tillman's tattered basket of constitutional interpretation." He cited a recent Lawfare article that called attention to a letter Justice Antonin Scalia sent Professor Tillman in 2014 rejecting his theory. (Professors Tillman and Blackman published it in an article last year.)

During a video interview from his book-cluttered living room in Dublin, Professor Tillman gave a rueful chuckle and gestured toward his outsider status — and location — as he said that critics were objecting "in the most meanspirited and personal way, without any attempt to grapple with the ideas."

"It's very dispiriting," he added. "But fortunately, I'm here. I'm in a position where I can walk away from such things."

Of course, there is another argument advanced by Luttig that did not make it into the Luttig-Keisler-Bernstein brief. In a lengthy tweet thread, Luttig argued that there is a difference between an "Officer of the United States" (capital O), which was used in Section 3 of the Fourteenth Amendment, and an "officers of the United States" (lower case O), used in the original Constitution of 1788.

The phrase in Section 3 is "officer of the United States," with a lower-case "o" in the word "officer," whereas in the Appointments Clause the phrase is "Officer of the United States," with a capital "O" in the word "Officer."  Think of the latter as a constitutional term of art.

— @judgeluttig (@judgeluttig) January 4, 2024

Here are Luttig's tweets assembled in a single passage. 

• For all of us who are grappling with the question whether the Framers of Section 3 of the Fourteenth Amendment intended the phrase "officer of the United States" to have the identical meaning as that same phrase in the Appointments Clause in Article II,
• it is important to recognize that, while almost identical, the two phrases in these two vastly different constitutional provisions actually are not identical. And the difference between them is of surpassing constitutional significance.
• The phrase in Section 3 is "officer of the United States," with a lower-case "o" in the word "officer," whereas in the Appointments Clause the phrase is "Officer of the United States," with a capital "O" in the word "Officer." Think of the latter as a constitutional term of art.
• The different capitalization in Section 3 was obviously meant to distinguish the broader class of "officers of the United States" who could be disqualified under Section 3 for having taken an oath to support the Constitution and then engaged in an "insurrection or rebellion" from the narrower class of "Officers of the United States" whose nomination and appointment, following the Advice and Consent of the Senate, are authorized and required by the president.
• The Framers of Section 3 unmistakably included "Officer[s] of the United States" as persons who could be disqualified from future office, but they also unmistakably included persons other than those appointed by the president under Article II, Section 2, Clause 2—including a former President and Vice President—as persons who could be disqualified. 
• If the Framers of Section 3 had intended to exclude from disqualification under Section 3 the "Office of President" and a former president, an "officer of the United States" who previously took an oath to support the Constitution and then engaged in an "insurrection or rebellion" against the Constitution, they would not have used the different phrase "officer of the United States."
• Rather, they would have used the identical phrase that is used in the Appointments Clause — "Officers of the United States."
• Of course, this is also clear from both the contemporaneous understanding of the phrase "officer of the United States" at the time of the framing of the Fourteenth Amendment and the debates and ratification history of Section 3.

If Luttig is serious about pursuing this argument, he should recognize that there has been some scholarship about the capitalization of words in different versions of the Constitution. Here are some of our findings:

• U.S. Code as reported on Westlaw: capital "O" in "Officers of the United States" 
• Sept. 17, 1787 signed original appears lower case: <https://museum.archives.gov/founding-documents#constitution>, but the LOC transcript reports it as upper case.
• N.Y. Daily Advertiser (Sept. 21, 1787), at 2, 3 (lower case "o" in Article II, Section II's use of "officers of the United States");
• New-York Packet (Sept. 21, 1787), at 2 (same);
• Penn. Mercury and Universal Advertiser, Philadelphia (Sept. 21, 1787), at 2 (same);
• N.Y. Independent Journal (Sept. 22, 1787), at supplement 1, 3 (same). [This printer's reproduction, in the Independent Journal, is customarily credited as the official print. See Editor's Note, 33 Journals of the Continental Congress 1774–1789: July 21 to Dec. 19, 1787, at 760–761, § 593 (Wash., GPO 1936), <https://babel.hathitrust.org/cgi/pt?id=mdp.39015068007072&seq=385&q1=constitution>.]
• United States Chronicle, Providence R.I. (Sept. 27, 1787), at 1, 2 (same);
• Massachusetts Gazette, Boston (Sept. 28, 1787), at 1, 2 (same);
• American Herald, Boston, Mass. (Sept. 30, 1787), at 1, 2 (same);
• Boston Gazette, and the Country Journal (Oct. 1, 1787), at 2, 3 (same);
• Middlesex Gazette, Conn. (Oct. 1, 1787), at 2, 3 (same);
• Constitution of the United States, 1 Statutes at Large 10, 17 (Richard Peters, ed., Boston, Charles C. Little & James Brown 1845) (same), <https://tile.loc.gov/storage-services/service/ll/llsl//llsl-c1/llsl-c1.pdf>; see also Joint Resolution Proposing An Amendment to the Constitution of the United States [the 14th Amendment], June 16, 1866, 39th Cong., Sess. 1, Res. No. 48, 14 Statutes at Large 358–59 (George P. Sanger, ed., Boston, Little, Brown, and Company 1868), <https://tile.loc.gov/storage-services/service/ll/llsl//llsl-c39/llsl-c39.pdf> (reporting lower case "o" in Section 3's use of "officer of the United States").

​​The United States Code's version of the Constitution of 1788 is not controlling. Rather, what ought to control is the version of the Constitution that was transmitted by the Articles of Confederation Congress to the States for ratification. We read the 1787 documentary record to show that lower case "o" for each use of "officer of the United States" in the original Constitution.

If so, the argument developed by Luttig on social media, that he thought "clear," was entirely wrong. We wonder if it was for this reason that this argument, the one Luttig advanced on social media, the one he thought "clear," did not make it into his brief. And if he came to understand how wrong his argument was, and so he chose not to include it in his brief, why did he not issue any retraction on social media? If he continued to believe this argument was strong, why was it absent from his brief, or any other brief? If he continues to think it correct, what sources was he relying on to confirm his textual claim that the original constitution used capital "O"s for "Officers of the United States," and what sources (other than himself) have made this argument (or anything like it) in the past. By contrast, our arguments are based on what Justice Story wrote in 1833 in his celebrated Commentaries on the Constitution. We admit it: we are not so original as Judge Luttig. And that is what makes us originalists.

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