[This post is co-authored with Professor Seth Barrett Tillman]
On January 18, Professor Akhil Reed Amar and Professor Vikram Amar filed an amicus brief in Trump v. Anderson, the Section 3 case. The brief was styled as in support of neither party, but the clear import of the brief is that the Supreme Court should disqualify Trump from the ballot. Professor Jason Mazzone describes the brief as "eye-popping and game-changing." We think that characterization is apt, but not for the reasons Mazzone described. As we read the brief, the Amars have retreated from the central position they put forward in an influential 1995 Stanford Law Review article. As their brief and other current commentary does not note their changed intellectual position, we wonder if they realize what they have done.
The "Global" Distinction: Legislators are not Officers
Article II provides that in the event of a presidential and vice presidential double vacancy "Congress may by Law . . . declar[e] what Officer shall then act as President." Under the current presidential succession statute, the Speaker of the House and Senate President Pro Tempore follow the Vice President in the line of succession. This statute would only be constitutional if either rank-and-file members of Congress, or those House and Senate positions, are "Officers" as used in Article II. In their 1995 Stanford Law Review article, the Amars argued that rank-and-file members of Congress, the Speaker of the House, and the Senate President Pro Tempore cannot be placed in the line of presidential succession. According to the Amars, neither members nor officers of the House and Senate are "Officers" for purposes of the Presidential Succession Clause. Central to their argument was what they called a "global" rule. (We discuss the Amars' position at some length in Part II of our 10-part series.) In the Constitution, the Amars write, the words "office" or "officer" refers to positions in the Executive and Judicial Branches. Members of the legislative branch and House and Senate officers are not "Officer[s]" as that term is used in the Constitution's Presidential Succession Clause.
The Amars wrote that the word "Officer" as used in "the Succession Clause[,] is merely shorthand for any of the[] . . . longer formulations" of the Constitution's "office"- and "officer"-language, such as "Officers of the United States" and "Office . . . under the United States." The Amars explained that "[a]s a textual matter," the varied references to "officers of the United States" and "offices . . . under the United States" "seemingly describe[] the same stations." (No actual support is put forward in support of their intuition.) The Amars did entertain the possibility that the Framers drew a "civil/military distinction" among different types of officers. But they posited that "the modifying terms 'of,' 'under,' and 'under the Authority of' are essentially synonymous." In short, the Amars concluded that the Constitution's divergent "office"-language creates a "global officer/legislator distinction." The "global" category of officers, according to the Amars, extends only to positions in the Executive and Judicial Branches.
Furthermore, according to the Amars, this "global" rule was not limited to members of Congress. Rather, members of state legislatures were also not officers. Global means global.
The Article VI Oaths Clause provides:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.
The Amars observe that Article VI "distinguishes 'Senators and Representatives' from 'Officers … of the United States.'" Likewise, the Amars observe, "Article VI explicitly distinguishes between 'Members of the several State Legislatures,' on the one hand, and 'executive and judicial Officers … of the several States' on the other." They conclude, with regard to federal and state positions, "[t]his carefully chosen language strongly reinforces the Constitution's global officer/legislator distinction."
And this distinction is not limited to the Constitution of 1788. Footnote 28 of the Amars' paper cites Section 3 of the Fourteenth Amendment. Footnote 28 states:
The [global] distinction [between legislators and officers] asserts itself yet again in a later amendment providing sanctions for violations of the Article VI Oath Clause. Id. amend. XIV, § 3 "No person shall be a Senator or Representative in Congress … or hold any office, civil or military, under the United States … who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State .…" (emphases in the Amars' article).
This citation in Footnote 28 is significant in several ways. First, the Amars assume—without any analysis—the phrases "Officers of the United States" and "Office under the United States" both had the same meaning in 1788 and in 1868. This admission goes a long way to support our conclusion: the meaning of "officers of the United States" did not drift from 1788 to 1868.
Second, the Amars expressly link the scope of Section 3's language to Article VI, which might put the President, who takes an Article II oath, beyond the scope of Section 3. In short, if the President does not take an Article VI Oath as an "Officer of the United States," then he is not covered by Section 3.
Let's read the entirety of Section 3, under the Amarian reading, in which the Constitution has a global officer/legislator distinction. Under this reading, a defendant disqualified under Section 3 is barred from holding certain federal and state positions. But such a disqualified person is not barred from being a state legislator. Section 3 states:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
A disqualified Section 3 defendant is barred from holding "any office, civil or military, under any State." There is no express language barring such a person from holding a state legislative seat. As officers and legislators are mutually exclusive terms under the Amars' global officer/legislator distinction, a Section 3 barred defendant may hold a state legislative seat. This position is consistent with authority contemporaneous with the Fourteenth Amendment's ratification. See John Randolph Tucker, General Amnesty, 126 N. Am. Rev. 53, 55 (1878), https://www.jstor.org/stable/i25110155; Editor, 'Interesting Decision as to Disqualification Under the Fourteenth Amendment,' [Richmond, Virginia] Daily Dispatch, Mar. 5, 1869, at 3; 'Does the Fourteenth Amendment Exclude the Disqualified from a State Legislature,' Wheeling [West Virginia] Daily Register, Aug. 30, 1871, at 4; 'Does the Fourteenth Amendment Exclude the Disqualified from a State Legislature,' [Richmond, Virginia] Daily Dispatch, Aug. 28, 1871, at 3.
The Amars have continued to quote, cite, and put forward the arguments in their 1995 Stanford Law Review article in subsequent publications. Ten such articles appear on Westlaw. Akhil Amar has returned to this theme in his books. See, e.g., America's Constitution: A Biography 170-73, 556-57 (2006); Akhil Amar, America's Unwritten Constitution 17-19, 404 (2012); see also Akhil Amar, The Words That Made Us 472-465 (2021). Their position has been adopted by colleagues and students. See generally Michael Stern, Amarica's Constitutional Crisis: A Kinda Intellectual History of the Office/Officer Controversy, Point of Order (Jan. 5, 2024), http://tinyurl.com/6xu6x43r (listing Akhil Amar's former-student protegees, e.g., Professor Kalt, Professor Chafetz, and Benjamin Cassady). The Amars have never retreated from their 1995 position.
Until now.
The Amars' Brief Endorses the View That State Legislators Are Officers
Jump forward to August 2023. Professor Will Baude (another former student of Akhil Amar) and Professor Mike Paulsen (Akhil Amar's former law school roommate) assert in their article that members of state legislatures do hold "office . . . under the United States." As Baude and Paulsen state: "Though somewhat more awkward, we think an elected office in a state legislature also qualifies as a 'civil' office within the language and design of Section Three, reading the word 'office' in this context in an ordinary, non-technical sense." (emphasis added). See Baude & Paulsen at 107. We suggest "awkward" is something of an understatement.
As a result, under the Baude and Paulsen view, a person subject to Section 3 disqualification can not serve in a state legislature. Baude and Paulsen do not opine that their position is in tension with the Amars' "global" member/legislator distinction that existed in 1788 and 1868. Quite the opposite, Baude and Paulsen posit that their position is consistent with the Amars' 1995 publication. Id. at 107 n.389 (citing the Amars' 1995 Stanford Law Review article, absent noting any tension with their position). Although Akhil Amar has had a good many recent podcasts on Section 3, including more than one such podcast with Baude and Paulsen, as far as we know, the daylight between his position and theirs was not a topic of discussion.
Now turn to the present day and the Amars' recent amicus brief.
The Amars' brief contends that Section 3 is self-executing, and it does not require federal enforcement legislation. We intend to return to their substantive position on the self-execution issue in a future post. But here, our focus is on the "officer" issue, and on the evidence of a new Section-3 related historical narrative which they have put forward.
Read these two passages from the brief, and see if you spot the inconsistency between the Amars 1995 (and post-1995) position and what they are now saying in their brief:
Soon after the Fourteenth Amendment formally came into effect in mid-1868, America elected Grant president. Grant placed Brevet Major General Edward Canby in charge of Virginia's Reconstruction. As Grant later explained in his memoirs, Canby was an officer "of great merit"—"naturally studious and inclined to the law." Few, if any, army officers, wrote Grant, "took as much interest in reading and digesting every act of Congress. . . . His character was as pure as his talent and learning were great."
Shortly after the Fourteenth Amendment's formal promulgation, Canby properly concluded that Section Three was self-executing. Any disqualified candidates in the Virginia elections, Canby announced, would not "be allowed to enter upon the duties of the offices to which they may have been chosen, unless their disabilities have been removed by Congress." He kept at least two disqualified candidates-elect out of the [state] legislature. (footnotes omitted)
Do you see the problem? Let's try the last sentence again: General Canby "kept at least two disqualified candidates-elect out of the legislature." The legislature. The only way Section 3 could be used to keep a disqualified person out of the legislature is if a state legislator holds an "office under a[] State." The very evidence that the Amars cite in relation to Section 3 undermines the so-called "global" rule they announced in 1995 and have continued to defend—until now.
We think this evidence puts the reader to a hard choice. If the Amars are correct, if the Constitution embraces a global officer/legislator distinction, and that distinction extends to Section 3, then several conclusions follow. First, a Section-3 barred defendant may serve as a state legislator. Baude and Paulsen would be incorrect for asserting that a Section-3 barred defendant may not serve as a state legislator. And those other academics who have argued that a Section-3 barred defendant is barred from all state and federal positions are equally incorrect. More importantly, the Amars' amicus brief argues that General Canby was relying on Section 3 authority when he barred persons from service in the state legislature. But ex hypothesi, Section 3 does not bar anyone from state legislative service. It follows that the Amars' new historical Canby-focused narrative in support of their interpretation of Section 3 is flawed, and it is flawed precisely because it is at odds with their own prior publications.
On the other hand, if the Amars are incorrect, if the Constitution does not embrace a global officer/legislator distinction, then the Amars' publications on the Presidential Succession Clause and other constitutional provisions using "office"- and "officer"-language are, if not wrong, flawed, and they should be reconsidered. And the same applies to the publications of the many, many academics and Amar protegees who have relied on the Amars' extensive scholarship on this subject.
We cannot square this circle. We doubt the Amars can do so, but we think they should, at the very least, try to do so, and acknowledge and address the contradictions and tensions across their own publications. Furthermore, the Amars do not explain why the Framers of the Constitution of 1788 would use different "office"- and "officer"-language across the original seven articles. Nor do they explain why the Framers of the Constitution of 1788 used different "office"- and "officer"- language within two clauses of Article VI—the Oath Clause and the Religious Test Clause. Nor do they explain why the Framers of the Fourteenth Amendment used different "office"- and "officer"-language within a single sentence of Section 3. And most importantly, the Amars do not explain why all these Framers would use all these textual variants when, according to the Amars, all these textual variants mean precisely the same thing and each different phrase extends to the identical set of federal officials and officers. The same criticism we give voice to here equally applies to Baude and Paulsen, who argue that "officer of the United States" is co-extensive with "office . . . under the United States."
Our position is different. We attempt to explain the textual variants in the Constitution's text. In our view, there is a simple explanation for the Constitution's divergent office language. Different "office"- and "officer"-language have different meanings, and different language was so understood. "Officer" has one meaning; "officer of the United States" has a different meaning; and, "Office . . . under the United States" has yet another meaning. The terms are related, but they are not the same. For example, the House Officers Clause refers to the Speaker of the House as an "Officer". The Speaker is not an "Officer of the United States," but the Speaker is an "Officer" for purposes of the Succession Clause. It is not all that complicated if you do not fight the text. And if we are correct, the Presidential Succession Act of 1947 (like its 1792 predecessor) is constitutional.
General Canby and Reconstruction
We do not suggest that Canby acted without good authority. At this juncture, we simply do not know the answer to that question. It is possible that Canby was relying on Section 3 as a grant of authority to bar disqualified persons from state legislative service. If so, we think he erred. Canby was not the Alpha and Omega of constitutional interpretation. But it is also possible that Canby was not relying on Section 3 as a source of authority to bar disqualified persons from the state legislative service. Instead, Canby may have been acting under general authority inhering in federal officials, including military officers, during military reconstruction, and/or under federal statutes granting authorities to federal officers. An amicus brief filed by a group of historians observed that "disqualifications, based on the text of Section 3, were enforced summarily by military commanders under the authority of the Reconstruction Act of 1867." Brief for Professors Orville Vernon Burton et al., at 25. (The historians do not seem to have recognized that the existence of this federal reconstruction statute undermined their argument that Section 3 was enforced absent enforcement legislation.)
If Canby was acting under federal reconstruction authority, there was no need for Canby or others to consider whether Section 3 was self-executing, because Congress, in fact, had already provided the legislation based on military reconstruction powers or other constitutional grants of authority beyond the Fourteenth Amendment. As we understand their position, the Amars, in their brief, make the argument that Canby was acting directly and exclusively under Section 3, absent authority granted by any federal legislation. But what (if any) evidence is there to support their position? It is up to the Amars to put such evidence forward in support of their "new" historical narrative.
Again, if the Amars want to argue that Canby's authority to bar disqualified persons from state legislative service relied exclusively on Section 3, then their "global" member/legislator distinction is, we think, dead in the water.
Alternatively, if the Amars' global member/legislator distinction does apply to Section 3, then Canby could not have relied on Section 3 when he barred disqualified persons from state legislative service. Instead, Canby must have been relying on some other set of powers in the Constitution other than section 3, or on federal enforcement legislation (unrelated to Section 3), or on some special powers associated with military law and military reconstruction. In any of these circumstances, the Amars' amicus brief errs. It errs because Canby may have been relying on other authorities, such as, federal enforcement legislation, which undermines the Amars' argument that Section 3 is self-executing.
Similarly, if the Amars' global member/legislator distinction does apply to Section 3, then Baude and Paulsen's paper is wrong in asserting that Section 3 is a bar on a state legislative service. And that point is of no small import. The state legislatures were the means by which secession was put into effect, and they were the machines that enforced the Confederate draft and raised taxes to support those armies in the field. If after all that, a Section-3 barred defendant was allowed to serve in the state legislature, then it is no great surprise that Section 3 does not bar a person from the presidency (and vice presidency) too.
The Amars' brief has other discussion about "office"- and "officer"-language. We think that discussion is also problematic, and, that the materials they cite, in fact, undermines their position.
The Ironclad Oath
The Amars' filing takes a format much like the Hart dialectic. It poses "twenty questions," and then proceeds to give answers. The first question posed, "Is the president an officer within the meaning of Section Three?" The Amars answer, "Undoubtedly." The Amars, as they did three decades ago, do not distinguish between an "Officer of the United States" and an "Office under the United States." To them, all of these phrases mean the same thing: the Constitution uses the word "Office" and "Officer" to refer to positions in the Executive and Judicial Branch, but not to positions in the Legislative Branch.
The Amars cite the Ironclad Oath Act of 1862 as evidence that the presidency is not an "office under the United States." They write:
When Civil War lawmakers aimed to exempt the president, they did so expressly. The Ironclad Oath Act of 1862 applied to "every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States." This language—in a landmark Oath-law predecessor to Section Three itself—proves that Congress and the public plainly understood that "the President of the United States" was emphatically a person who held an "office . . . under the government of the United States." (footnote omitted)
This argument is not original to the Amars. Miles Lynch raised this argument, as did Baude and Paulsen. We responded to this argument at some length at pp. 572-577 of our article, Sweeping and Forcing the President into Section 3.
The short answer: the Amars only quote from part of the Ironclad Oath statute.
The statute has two relevant parts. The first part, which the Amars quote, lists those who had to take the new statutory oath: "hereafter every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States." These individuals "shall, before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe the following oath or affirmation." The statute then provides the so-called Ironclad Oath.
The second part of the statute, which the Amars did not quote, lists the positions that a convicted person may be disqualified from holding: "And any person who shall falsely take the said oath shall be guilty of perjury, and on conviction, in addition to the penalties now prescribed for that offence, shall be deprived of his office and rendered incapable forever after of holding any office or place under the United States."
We make four primary observations based on the plain text. First, the "office"-language in the first part is different from the "office"-language in the second part. The former refers to "any office of honor or profit under the government of the United States." The latter refers to "any office or place under the United States." The fact that the same statute uses different "office"-language strongly suggests that that the language refers to different positions. We have written that the phrase "Office . . . under the government of the United States" is broader than the phrase "Office . . . under the United States." The former phrase includes the elected President and the Vice President and the Vice President.
We make a second observation based on the plain text of the Ironclad Oath statute. The President is expressly excluded from the scope of the phrase "office of honor or profit under the government of the United States, but not expressly excluded from the scope of the phrase "any office . . . under the United States." We agree with the Amars that the former phrase (i.e., "office … under the government of the United States") includes the presidency, and all elected and appointed federal officials and officers. But the Amars do not parse the remainder of the statute's text. This latter phrase (i.e., "office . . . under the United States") includes only appointed federal positions, and it does not include the presidency, or any elected federal officials. Because this latter phrase does not include the presidency, there was no need to exclude the presidency from this part of the statute. Substantively, the President was excluded from the scope of the former phrase because Congress does not control the President's Article II oath. As to the statute's disqualification provision, in the latter phrase, there was no need to exclude the President from the scope of the statutory disqualification because that text (using more limited "office"-related language) does not extend to the presidency. Moreover, in 1862, Congress had no authority to impose additional qualifications on the presidency. As a result, the statute uses language that is consistent with Congress's limited power in regard to setting qualifications. Congress sets qualifications in regard to positions which it authorizes, regularizes, or creates by statute, and not with regard to elected positions created by the Constitution.
We make a third observation. The statute expressly distinguishes between those who are elected and appointed to an "office of honor or profit under the government of the United States. Elected and appointed are not synonymous, as some would claim. And if you contend that members of the legislative branch are never "offices," as the Amars have argued since 1995, then the President and the Vice President are the only elected positions that could fit within the ambit of "office of honor or profit under the government of the United States." No one else is elected in the federal system! This statute reaffirms something that was never in doubt until recently: the President is elected, not appointed.
The fourth conclusion is the most important. We think the Amars would agree that Congress cannot add qualifications to the presidency by statutes. Therefore, the phrase "any office or place under the United States" could not include the presidency, because Congress could not by statute disqualify a person from holding the presidency. This statute was enacted in 1862, prior to the 14th Amendment, so it could not be a means of enforcing a Section 3 disqualification. As a result, the phrase "office under the United States" should not be understood to include the President in this statute. And that is one reason why there was no need to exclude the presidency from the force of this provision. It is this "office under the United States"-language that is in Section 3. And this language does not extend to the presidency.
All of this is to say that the Ironclad Oath does not support the Amars' position. At most, it suggests the presidency is an "Office under the Government of the United States," but is not an "Office under the United States." We don't hold this statute, or any other statute, as dispositive evidence of what similar language means in the Constitution. Rather, we point out again how the very evidence the Amars cite undermines their 1995 (and post-1995) position. This statutes shows varied "office"-language within a single statutory provision and how some variations in the language include the presidency (and other elected provision), but other variations do not include the presidency (and other elected positions). One wonders if the Amars realized that the position they have taken in their recent amicus brief is at odds with their 1995 (and post-1995) position?
What kind of Commission does the President need?
The second question asked and answered by the Amars in their amicus brief focuses on the Commissions Clause. The Commissions Clause provides that the President "shall commission all the Officers of the United States." The Amars respond that "The president ordinarily does not commission himself." Ordinarily? Does he do it sometimes, in an unordinary fashion? We don't even know what this hedge means. More than a decade ago, Professor Saikrishna Prakash (another former student of Akhil Amar), argued that the President may have commissioned himself. In response, Tillman produced a congressional report stating that the practice is not to commission the President. No one—not Saikrishna Prakash, and not Akhil Amar, and not Vikram Amar—has ever produced any evidence that any such commission has ever existed. (If you missed it, Prakash recently wrote an essay in the Messenger, in which he doubles-down on the Amarian position.)
The Amars try to work around this historical record by explaining that the President does receive a commission—sort of—just not from himself:
It makes far more sense to say that the president is not the kind of officer who needs a president-issued commission. Nor is the vice president. The reason for this is simple, when the Constitution is read holistically: A commission is a piece of paper identifying who is an officer and when his/her status as an officer commenced. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 156–57 (1803). But for presidents and vice presidents, the Constitution itself provides a separate mechanism for answering these questions. As we explained more than a decade ago, Congress in certifying the electoral votes issues a "commission-equivalent," identifying who the new president and vice president will be. And the Constitution itself specifies when the office commences: precisely every four years, at noon on Inauguration Day. [Amar & Amar amicus brief at 19.]
We are not entirely sure what to make of this argument. The Constitution provides that the commission must be issued by the President—not by a joint session of Congress. Ask any federal judge in the country who signed their Article III commission—it was the President, not the Senate that confirmed him or her. Even if the tabulation paperwork by the joint session of Congress was somehow a functional commission (it's not), that tabulation is not issued by the President to himself or to a successor. The Amars would ignore the text of the Commissions Clause because it does not comport with their understanding of what an "Officer of the United States" is. The simpler and, therefore, better conclusion is that the President does not commission himself because he is not an "Officer of the United States."
The President is not a Military Officer
The Amars have a standard response to the argument about the Impeachment Clause. They argue that the President is actually a military officer, at least in part, so he would not fall under the umbrella of the Impeachment Clause's "civil officers of the United States"-language. Akhil Amar restated this position on his podcast (starting at 1:18:12), as if it were some sort of slam dunk. The Amars' brief states:
This clause refers to "the President, Vice President, and all civil officers of the United States." If the president is an officer, why doesn't the text say "all other civil Officers of the United States"? Aha!, exclaims Professor Mousehole, triumphantly. One obvious answer to the fictional Professor Mousehole is that the president is not purely a civil officer but also a military one, as commander-in-chief. The vice president is second in military command, should the commander fall. Or so a draftsman might have thought. Today, America's soldiers salute the president and vice president, but not, say, a typical senator or cabinet secretary or justice.
Professor Mousehole (for those who did not read the entire brief) is a reference to Justice Scalia's observation that Congress does not hide elephants in mouseholes. But, as is often the case, the Amars state a position without any actual authority in support of their novel position. There is substantial, continuous authority that the President is not a military officer, in whole or in part. In 1789, Secretary of the Treasury Alexander Hamilton included the President in the "civil list," but not in the "military list." See Report on the Estimate of the Expenditure for the Civil List and the War Department (1789). In Parker v. Levy (1974), the Supreme Court observed, "The military establishment is subject to the control of the civilian Commander in Chief and the civilian departmental heads under him, and its function is to carry out the policies made by those civilian superiors." (emphasis added) The Court could not have been clearer. The proposition that the President is a civilian official is not controversial. Where has it been debated? Rather, to avoid undermining their atextual position, the Amars have to assert claims about the nature of the presidency without any actual substantial evidence.
Again, the Impeachment Clause refers to the "President, Vice President, and civil officers of the United States." It is a fact that the President and Vice President are listed separately from the "civil officers of the United States." It is a fact that this provision does not state: "other civil officers of the United States." It is a fact that an early draft of the Impeachment Clause used "other" in just this fashion. It is a fact that the word "other" was stripped out by a style committee at the federal convention. (See pp. 397-400 of Part III.) And it is a fact that jurists and scholars, for two centuries, have reasoned on this basis that the President is not an "officer of the United States." The Amars cannot undercut all these facts by making the threadbare assertion that the President is a military officer. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 646 (1952) (Jackson, J., concurring) (noting that the Framers' "purpose of lodging dual titles [i.e., President and Commander-in-Chief] in one man was to ensure that the civilian would control the military . . . ." (emphases added)); Roosevelt Is Held Civilian At Death, New York Times, July 26, 1950 (reporting that a New York surrogacy court found that President Franklin D. Roosevelt was not a military officer due to the fact that the President is subject to impeachment, but not "court martial or other military discipline."); see also Saikrishna Bangalore Prakash, Deciphering the Commander-in-Chief Clause, 131 Yale L.J. 1, 83 (2023) (explaining that "[t]here is no separate office of the Commander-in-Chief").
What about Justice Story's Commentaries on the Constitution?
Throughout this debate, we have been surprised that our critics have ignored Justice Story. His celebrated Commentaries on the Constitution (1833) support the position that the President is not an "Officer of the United States." Baude and Paulsen do not mention his writings on the Impeachment Clause. Professor Sam Bray, who entered the debate in a recent post, also does not mention Story. Tillman is not the origin of the position that the President is not an "Officer of the United States" It goes back, at least, to Justice Story. (Obviously, we think it goes back to 1787.) And Story, and his Commentaries, would have been well known to many in the 1860s when the Fourteenth Amendment was passed by Congress and ratified. For example, the Louisville Daily Journal, expressly invoked Story's Commentaries, when making the argument that the Impeachment Clause supports the view that the President is not an "officer of the United States."
To their credit, the Amars acknowledge Story's position, but discount its relevance:
Justice Story basically asked Questions 2 and 3, to which we have offered our short answers. Of course, Story did not live to see Section Three, so he cannot be strongly relevant on what its drafters and ratifiers meant. Great as he was, Story was hardly infallible, as this Court recognized in Moore v. Harper, 600 U.S. at 34, which sidestepped Story's hasty embrace of ISL theory. See also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 856 (1995) (Thomas, J., dissenting) (critiquing Story similarly).
Justice Story did not just ask questions about whether the President is an "Officer of the United States." He answered those questions in the negative! In any event, the Amars miss the mark. Justice Thomas observed in Term Limits:
Justice Story was a brilliant and accomplished man, and one cannot casually dismiss his views. On the other hand, he was not a member of the Founding generation, and his Commentaries on the Constitution were written a half century after the framing. Rather than representing the original understanding of the Constitution, they represent only his own understanding. (emphasis added).
With regard to Article III jurisdiction, Akhil Amar was once eager to rely on Story's views in Martin v. Hunter's Lessee. Not so much on Section 3. Notwithstanding Story's publishing his Commentaries several decades prior to the ratification of the Fourteenth Amendment, his Commentaries are indeed relevant to understanding Section 3.
In the Section 3 debate, we do not put Story forward in order to determine the original meaning of the Constitution in 1788. Story wrote several decades after ratification. Rather, Story was opining on the Blount impeachment trials. And for decades, lawyers and jurists studied Story's Commentaries. In many regards, Story affected the original public meaning of "Officer of the United States" in 1866 through 1868. The article in the Louisville Daily Journal, which cites Story, is substantial evidence of this conclusion. And it is not just this newspaper; rather, Story's Commentaries were invoked countless times in mid-nineteenth century impeachment proceedings and in other debates on statutes and proposed constitutional amendments. Professor Kurt Lash observed in his amicus brief that "[t]he Members of the Thirty-Ninth Congress accepted Joseph Story as 'our highest commentator' on the Constitution, and they cited and quoted his work repeatedly during congressional debates." Who is a more reliable expositor of the Constitution, as it was understood in the nineteenth century: the Amars or Story? To ask the question is to answer it. Again, the Amars' dismissing Story's relevance to the debate on Section 3's "office"- and "officers"-language misses the mark.
The Amars' Amicus Brief does not even mention the Appointments Clause. Why?
There are four provisions in the Constitution of 1788 that use the phrase "Officers of the United States": the Commissions Clause, the Impeachment Clause, the Article VI Oath Clause, and the Appointments Clause. The Amars discuss the first three of these provisions, but not the fourth. We are uncertain why. The Principal Officers Appointments Clause appears in Article II, Section 2, along with the Inferior Officers Appointments Clause and the Recess Appointments Clause:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Our view is that the Appointments Clause is the strongest evidence that the President is not an "Officer of the United States." Indeed, there is ample Supreme Court case law supporting this view. For example, United States v. Smith (1888) explained, per Justice Field, "[A]n 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 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." (emphasis added) Smith did not merely say that all appointed officers of the United States must be appointed through Article II, Section 2 procedures. Rather, Smith made a significantly more expansive claim. The Court stated that any person who holds his position by any other procedure outside Article II, Section 2 is not an officer of the United States. Thus, the President and Vice President and members of Congress are not officers of the United States. This principle was not first announced in Smith, and cases since Smith have continued to cite Smith as good law. Smith has never been overruled. Nor has any Supreme Court decision even hinted that Smith erred. Finally, the Smith Court explained that the issue to be determined is not how "Officer of the United States" is used in everyday speech or in statutes; rather, the issue to be determined is how that phrase is used "in the sense of the Constitution."
Why did the Amars' analysis in their brief skip the Appointments Clause? Is it that the gravamen of their position is that the President is an appointed position, but they are unwilling to clear the air by saying so? The Respondents-voters in Trump v. Anderson have now tied themselves to the mast that the President is appointed by the electoral college. Respondents Br. at 40. Our view is that Respondents' position errs.
Or, maybe the Amars are uncertain about the meaning of "whose Appointments are not herein otherwise provided for, and which shall be established by Law." They would be in good company. In United States v. Maurice (C.C.D. Va. 1823), Chief Justice Marshall wrote of the Appointments Clause, "I feel no diminution of reverence for the framers of this sacred instrument, when I say that some ambiguity of expression has found its way into this clause." We realize Roger Parloff and others have suddenly discovered the Appointments Clause's true meaning and were good enough to tell us its meanings just days before the Supreme Court will hear Trump v. Anderson. Indeed, the Respondents have now expressly adopted this argument:
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. (Respondents Br. at 40).
But the fact of the matter is that resolving this legal issue was difficult for John Marshall. So a just-in-the-nick-of-time discovery and publication days before oral argument might raise some legitimate doubts.
We discuss at some length the text of the Appointments Clause, and different ways to read it at pp. 377-387 of Part III. Professor Chad Squitieri of Catholic University offers a similar analysis in his article, Towards Nondelegation Doctrines (pp. 1262-63).
Again, here is the text for ease of reference: The President "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." In order for this phrase "whose Appointments are not herein otherwise provided for, and which shall be established by Law" to apply to the President—that is, in order to interpret this phrase as meaning that the President is an "Officer of the United States"—four things must be true.
First, for this argument to work, two lines of Supreme Court precedent would have to be wrong. And more than wrong; they would have to be nonsensical. United States v. Hartwell (1867), decided a year before the ratification of the Fourteenth Amendment, offered a two-part definition of an office. First, a procedural component: "[a]n office is a public station, or employment, conferred by the appointment of government." Second, a substantive component: "[t]he term [office] embraces the ideas of tenure, duration, emolument, and duties." This test included both a procedural and substantive component for the meaning of "Officer of the United States." The Hartwell line of cases was reaffirmed in Germaine, Buckley, Morrison, Lucia, etc. (See our analysis with regard to whether Special Counsel Robert Mueller was an "Officer of the United States.") There is another line of precedents that define an officer of the United States based on the procedure by which that position is filled: Mouat (1888) and Smith (1888). These cases focus on the first procedural prong of Hartwell. They do not focus on the substantive prong. Smith stated, without any equivocation:
[A]n 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 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. (emphasis added).
The position that "not herein otherwise provided for" extends to positions filled by election or to mechanisms outside Article II, section 2 procedures is entirely inconsistent with both lines of cases. The Hartwell line of cases provided a two-step test, and the first step focused on appointment. It makes no sense to say election is an alternative which takes the President out of the Article II process of appointing "Officers of the United States." As for Mouat and Smith, those decisions make clear that the only way to fill an "Officer of the United States" post is to be appointed, and such appointment must be made by the President, a court of law, or a head of department.
The reading suggesting that there are other mechanisms to fill an "officer of the United States" position is inconsistent with these precedents. It is more than inconsistent with these precedents. That reading reduces these holdings to nonsense. Moreover, Mouat was written by Justice Miller; Smith, by Justice Field—both Lincoln appointees, loyal Union men, who received their appointments while the Civil War was still ongoing. Is it really possible that they both wrote for unanimous Courts, and both they and all the other Justices just "forgot" that the President is an appointed "Officer of the United States"?
We answer "no."
For ease of reference, we repeat the text of the Appointments Clause: the President "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 . . . ."
Second, for the Respondents' argument to work, the phrase ", and which shall be established by Law" would not apply to the immediately preceding language: "whose Appointments are not herein otherwise provided for." And that reading would run afoul of the Last-Antecedent Canon. If the phrase "whose Appointments are not herein otherwise provided for" refers to some category of appointed positions, then "which shall be established by Law" would modify the immediately previous referent. That is, this category of other appointed positions must be established "by law." But the presidency was not established "by law." "By law" is a drafting term meaning "by statute." See Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424 (1990) ("Money may be paid out only through an appropriation made by law; in other words, the payment of money from the Treasury must be authorized by a statute." (emphasis added)); Amar, Biography, at 170 (stating that "by Law," as used in the Succession Clause, means "by a statute presumably enacted in advance"); Harris L. White, Constitutional Law: Joint Resolutions: Effect Upon Statutes, 22 Cornell L.Q. 90, 92 (1936). The presidency was not established by statute; rather, the presidency was established by the Constitution.
Third, for the Respondents' reading to work, the President would have to be appointed, not elected. We have recently responded to claims by Roger Parloff who claims that the President is in fact appointed, and not elected. James Heilpern and Michael Worley (pp. 17-26) assert that for purposes of the Constitution, appointed and elected have the same meaning. And Respondents have endorsed Heilpern and Worley on this point. (Respondents 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.") By way of counter-example, we note that the Sinecure Clause draws an express contrast between appointed officers and elected officials. The Sinecure Clause states:
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 . . . . (emphases added).
Undoubtedly, appoint and elect have overlapping meanings, and the public will, on occasion, use them in a similar fashion, perhaps, even as synonyms. But the relevant issue is how does the Constitution use this terminology, and how did and how would the contemporaneous public have understood the Constitution's usage. The Sinecure Clause points us in the direction of the answer.
Blackman, who has performed research with corpus linguistics, has long recognized that not all sources in the Corpus of Founding Era American English (COFEA) should be treated equally. For example, in the context of the Second Amendment, state constitutions and statutes about bearing arms, which were given public scrutiny as official government documents, should be given more attention than hastily-drafted letters that were dashed off with little deliberation and no public scrutiny. Indeed, in Heller, Justice Scalia placed primary reliance on these official documents. The same principle suggests caution before treating as dispositive extemporaneously delivered floor statements by legislators, who may not have used the same precision they would when drafting a statute or constitutional amendment. Generations of scholarship on the risks of citing legislative history are apt. Blackman's co-authored article on corpus linguistics observed that a "constraint on COFEA" is that "People tend to speak differently than they write." James C. Phillips and Josh Blackman, Corpus Linguistics and Heller, 59 Wake Forest Law Review 609, 634 (2021).
To put it another way, the primacy of the Constitution's text, including the Sinecure Clause, should be entitled to more weight than scattered statements in a corpus linguistics search. And this position is supported by mounds of precedents. Jurists from Chief Justice John Marshall in U.S. v. Burr to Chief Justice John Roberts in Free Enterprise Fund, Seila Law, and Vance have concluded that the President is elected. (Also see above how the Ironclad Oath statute distinguishes between appointed and elected positions.)
Fourth, for the Respondents' reading of the Appointments Clause to work, the "Officers of the United States" "whose Appointments are not herein otherwise provided for" would be appointed by someone other than the President. They contend that the Electoral College makes that appointment. But the Constitution consistently describes the President as elected. For starters, the word "electors" is based on the word "elect." Under Article II the electors, who are appointed by the states, who then "vote by Ballot." The Presidential Succession Clause states that the "President shall be elected." The Domestic Emoluments Clause refers to the period in which the President "shall have been elected." Like with the Sinecure Clause, the Respondents' place some scattered corpus linguistics searches over the actual language used in the Constitution.
In our view, the phrase "whose Appointments are not herein otherwise provided for" is a null set. The first key word is not. The text is telling the reader that there are not any other officers of the United States located outside of Article II, Section 2. This phrase directs the reader not to scour the Constitution for additional mechanisms which fill "Officer of the United States" positions. Part III, at 383-385, 442-445 Moreover, the text that immediately follows provides further support for our position: The President "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." The phrase "and which shall be established by Law" modifies all that comes before it. The second key word is and. This phrase modifies all that comes before it. We think the nearest-reasonable referent canon is apt here. All of the Officers of the United States must be established by law. All of them.
The contrary reading, Respondents' reading of the Appointments Clause, leapfrogs from "all other Officers of the United States" to "and which shall be established by Law." That is, all "Officers of the United States" are established by law, except for this unknown set of Officers of the United States, who are not established by law, including the Presidency. We think this novel reading of the text is very difficult to justify.
We realize there is some debate about the meaning of the word "herein" in the Article I vesting clause: "All legislative Powers herein granted shall be vested in a Congress of the United States." The traditional view is that the word "herein" is limited to Article I—if a power is not enumerated in Article I, then Congress lacks that power. Some scholars argue that "herein" should refer more broadly to the entire Constitution, and perhaps beyond the Constitution's text. Here, we take no position on that debate.
Rather, we note a contrast in the constitutional text distinguishing the Appointments Clause from the Article I vesting clause. In the Appointments Clause, the Constitution tells us that there are not any other officers of the United States provided for. Other officers of the United States are "not herein otherwise provided for." They do not exist. All of the Officers of the United States are provided for in Article II, Section 2. And they must be established "by law," that is, in a future statute. That's it. In Article I, Section 8, the powers that are "herein granted" refer to the powers that exist (someplace else in the Constitution). By contrast, the Appointments Clause's text explains that there are no "Officer of the United States" positions beyond Article II, Section 2.
Article I, Section 8 creates a positive implication; Article II, Section 2 creates a negative implication. Article II, Section 2 is a clear textual limitation on who holds the power to fill "Officer of the United States" positions. "Officer of the United States" positions may only be filled by the processes spelled out in Article II, Section 2. The "herein" language is not an indirect reference to an unknown category of "Officers of the United States" positions that are filled outside Article II, Section 2.
It follows that elected positions beyond the scope of Article II, Section 2 are not "Officers of the United States." Accepting the view that elected federal positions are "Officers of the United States," as that phrase is used in the Constitution, would imply not only that Mouat and Smith and a long line of U.S. Supreme Court cases, before and after Mouat and Smith, were wrongly reasoned, but that those decisions entirely misread the Constitution's text. And yet, if these decisions were so very wrong, where is the contemporaneous line of dissents and scholarly commentary explaining that they were wrong. How is it that no one noticed until circa 2020?
The better view is that Mouat and Smith and the Supreme Court's more recent decision in Free Enterprise Fund were correct, and that the Respondents (and their supporting Amici) in Trump v. Anderson are wrong. The President is not an "Officer of the United States" as that phrase is used in the Constitution of the United States.
Will the Supreme Court cast doubt on the constitutionality of the Presidential Succession Act of 1947?
The stakes in the Section 3 case are greater than most advocates have realized, or larger than what they have been willing to discuss in public. If the Supreme Court adopts the Amarian view, that there is no difference between an "Officer," and "Officer of the United States," and an "Office under the United States," the Justices will lend their imprimatur to the Amars' conclusion: the Presidential Succession Act is unconstitutional. There is much discussion about the importance of a peaceful transition of power. Yet, these discussions fixate on the transition from one president to another president, following an election. But what happens if there is a double vacancy? Remember when President Trump was hospitalized due to COVID, and Vice President Pence was exposed? At the time, the Speaker of the House, Nancy Pelosi, was a Democrat, and the Secretary of State, Mike Pompeo, was a Republican.
Think about a double vacancy in that scenario for a few moments. Speaker Pelosi could have claimed the presidency under the statute, while Secretary of State Pompeo could have asserted—citing the Amars—that he was the real President because the statute's provision putting legislative officers in the line of succession was unconstitutional. Where would DOJ have come down on that issue? Could courts have declared actions taken by Pelosi or Pompeo as invalid?
Chaos would have ensued very quickly. For those keeping score at home, the Amars were silent about whether the Presidential Succession Statute was still unconstitutional when President Trump was in the hospital with COVID, and Vice President Pence had potentially been exposed.
However, if the Court agrees with our position—and explains that there is a difference between an "Office" and an "Officer of the United States"—that decision would undermine the Amars' intuition that all "Office"- and "Officer"-language in the Constitution means the same thing. The global distinction in the Constitution is between appointed and elected positions, as opposed to the Amars' purported global distinction between legislative and non-legislative positions. And in the process, the Supreme Court would place the Presidential Succession Act on a firm footing. The President is regularly described by the Constitution as holding an "Office." The Speaker is described as an "Officer." But in the Section 3 litigation, the Court need not address whether the Speaker is an "Officer" for Succession Clause purposes. We think he is. But that is not at issue in this litigation. The Section 3 litigation will be resolved if the Court recognizes that "Officer of the United States" has a singular, distinct meaning based on how that phrase is used in the Appointments Clause, the Commissions Clause, the Impeachment Clause, and the Oath Clause.
The post Professor Akhil Reed Amar and Professor Vikram Amar Retreat From Their "Global" Rule for the "Offices" and "Officers" of the Constitution appeared first on Reason.com.
