During oral argument in Trump v. Anderson, counsel for the voters was forced to abandon the claim that the Speaker and the Senate President Pro Tempore were "officers of the United States" whose appointments were not provided for in Article II, Section 2. Patrick Murray referred to those presiding officers as "an exception to the general rule." In doing so, Murray surrendered two of the four positions that Justice Scalia listed in his letter to Tillman.
What about the other two positions in the Scalia letter: are the President and Vice President "officers of the United States" whose appointments are not provided for in Article II, Section 2? Through the Sinecure Clause, Tillman and I have demonstrated that the answer to this question is no. In our view, the phrase "not herein otherwise provided for" is a null set. There are no such offices. The Constitution is telling us that there are not "Officers of the United States" who are provided for elsewhere. All of the "Officers of the United States" are provided for in Article II, Section 2.
During the Originalism Works-in-Progress Conference, I was asked why the Framers would include this phrase if it referred to zero positions. One possible answer can be found in the drafting history of the Appointments Clause. At earlier junctures during the convention, the legislature had the power to appoint different positions, including judges, ambassadors, and the treasurer. These appointments were not provided for in (what became) the Appointments Clause. But over time, the Convention removed the legislature's power to appoint these positions. The power to appoint those positions was given to the President. As a result, the phrase "not herein otherwise provided for" indicated that "Officers of the United States" were only appointed pursuant to the procedures spelled out in Article II, Section II. And to reinforce this point, the phrase, "and which shall be established by law" was added to the Appointments Clause, making clear that the "Officers of the United States" had to be created by statute, and not by the Constitution. There is nothing I've seen in the drafting history to suggest that the phrase "not herein otherwise provided for" refers to (as Scalia suggested), the President, the Vice President, the Speaker, and the Senate President Pro Tempore.
