Constitutional Officers: A Very Close Reading

  • Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5 Brit. J. Am. Legal Studies 95 (2016), available at SSRN
  • Seth Barrett Tillman, Originalism & the Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014), available at SSRN

Everybody should read the Constitution. But some of us find more in its text than others. In a series of underappreciated pieces,1 Professor Seth Barrett Tillman may have found an intricate and startlingly coherent set of principles about government structure — as well as a reminder to take the Constitution’s words more seriously than we do.

Much of the Constitution (especially the original 1789 document) deals with structure. It creates government institutions, defines their powers, and regulates their membership. In the course of doing so, many of the Constitution’s provisions deal with individuals who hold government office – officers. Indeed, if you start ticking off references to “office” and “officers” as you read through the Constitution, you may notice two things: There are a lot of them, and many of them are phrased differently.

Consider some examples (emphasis added in each):

  • “Officer.” See, e.g., Article II, Section 1 (“[T]he Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.”)
  • “Officer of the United States.” See, e.g., Article II, Sections 2-3 (“The President … 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 … and shall Commission all the Officers of the United States.”)
  • “Officer under the […] United States.” See, e.g., Article I, Section 6 (“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 increased 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.”)
  • “Public Trust under the United States.” See Article VI (“[N]o religious Test shall ever be required as a Qualification to any … public Trust under the United States.”).

As detailed below, there are many more. Most people, even most sophisticated scholars, have assumed that these textual variations are basically the same. Or, if they differ from clause to clause, people assume that the differences depend on the purpose of the provision, not the differences in wording. But what if that widespread assumption is wrong? One of Professor Tillman’s projects — I am tempted to call it a crusade — is to take these textual differences seriously, and show that the different office-related phrases have distinct meanings.

This isn’t just technicality for its own sake. The debate has important practical consequences. Consider the problem of presidential succession. Article II, Section 1, empowers Congress to decide “what Officer shall then act as President,” if both the President and VP are gone, and current law chooses the Speaker of the House. (Think of the Season Four finale of The West Wing.)

But the Speaker is not an “Officer of the United States.” The Speaker is elected by the people, and Article II, Sections 2 and 3, says that “Officers of the United States” are to be appointed and commissioned by the President. So if “Officer” and “Officer of the United States” are the same thing, the presidential succession statute is unconstitutional (an argument made by James Madison, and later by Professors Vikram and Akhil Amar). But if Professor Tillman is right, i.e., if “Officer” and “Officer of the United States” are different, the statute is fine. And if the dispute is unresolved, it is a recipe for constitutional crisis.

The evidence that Professor Tillman amasses is wide-ranging. Much of it is circumstantial or based on post-ratification practice. But some of it makes powerful points. For instance, so far as we can tell, no President has ever given himself or the Vice President a commission. That suggests that the President and Vice President are not “Officers of the United States,” and raises questions about whether other “Officer” formulations apply to the President.

Here are two more historical examples. First, President George Washington publicly received gifts from French officials (the key to the French Bastille and a portrait of Louis XVI) without asking Congress’s permission. This suggests that he was not subject to the Foreign Emoluments Clause, which applies to a “Person holding any Office of Profit or Trust under [the United States].” Second, in 1792, Treasury Secretary Alexander Hamilton was instructed to report to the Senate “every” person holding “office … under the United States” and their salaries. His ninety-page list included every appointed officer, including those in the legislature, such as the Clerk of the House, but excluded elected officials such as the President, Vice President, and members of Congress. This suggests that some definitions of office will turn on whether one is elected rather than which branch one is in.

Now, there may be alternative explanations for each of these points. Taken as a whole, however, they start to suggest that most of us have been too quick to assume that there is no logic to the Constitution’s varying terminology. Across his publications, Professor Tillman puts forth a systematic, intricate account of each of these terms, which makes sense of the historical examples and provides a consistent and coherent account of the text.

As I understand it, here is a synthesis of the Professor Tillman position:

Phrase Meaning Constitutional Provisions
Officer (simpliciter) Holds an office – includes those holding “office … under the United States” as well as those holding elected positions: The President, Vice President, and Speaker of the House and Senate President Pro Tem Succession Clause, Art. II,
sec. 1
Officer of the United States Appointed officers in the executive and judicial branches – subset of those holding “Office … under the United States” Appointments Clause, Art. II,
sec. 2
Commissions Clause, Art. II,
sec. 3
Impeachment Clause, Art. II,
sec. 4
Oaths
Clause, Art. VI
Office … under the United States All positions created, regularized, or defeasible by federal statute including (nonelected) legislative branch positions Incompatibility Clause, Art.
I, sec. 6
Rebellion Disqualification
Clause, Amdt. XIV, sec. 3
Religious
Test Clause, Art. VI
Offices of Honor/Trust/Profit under the United States Subsets of “Office … under the United States”
Honor: Honorary offices with no regular duties, salary, or other emoluments
Trust: Offices with regular duties that are not delegable, e.g., an Article III judge
Profit: Offices holding regular salary or other emoluments
Disqualification on Impeachment
Clause, Art I, sec. 3
Foreign Emoluments Clause,
Art. I, sec. 9
Elector Disqualification
Clause, Art. II, sec. 1
Public Trust under the United States Elected positions and constitutionally created offices – i.e., the President, Vice President, Members of Congress, and Members of an
Article V national convention
Religious Test Clause, Art. VI
Office under the Authority of the United States A superset of “Office … under the United States.” It also includes federally supervised offices, even if not federally created (such as mobilized militia officers) Domestic Emoluments Clause, Art. I, sec. 6

(Thanks to Margo Uhrman for her assistance in compiling this table.)

Next time you confront a separation of powers problem or read through parts of the Constitution, keep Professor Tillman’s chart in hand. Suddenly, it will be hard to assume that the Constitution’s textual variations are meaningless. Indeed, Professor Tillman’s theory makes sense of patterns that most of us never saw. It brings order out of chaos. That is not to say that his position has been conclusively proven. But at this point, I think he has singlehandedly shifted the burden of proof.

Since this is an entry in the Journal of Things We Like Lots, and since I am synthesizing much of Professor Tillman’s work here, I feel the need to venture a final word on his research style. When you read an individual Tillman piece, you will notice exceedingly technical arguments combined with an almost urgent voice. You cannot help but think the author is brilliant, and you cannot help but wonder if the author is rather eccentric. As you read more of the pieces together, you will realize that he has a constitutional project, that he pursues it with great skill and knowledge, and that if he didn’t do it, nobody would.

We need more scholars like Seth Barrett Tillman.



  1. These two recent works advance a longer sequence of research, including: Seth Barrett Tillman, Why Professor Lessig’s “Dependence Corruption” Is Not a Founding-Era Concept, 13 Election L.J. 336 (2014), available at SSRN; Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 61 Clev. St. L. Rev. 285 (2013); Seth Barrett Tillman, Six Puzzles for Professor Akhil Amar (2013), available at SSRN; Seth Barrett Tillman, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. 399 (2012); Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 107 (2009), available at SSRN; and Seth Barrett Tillman, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. of Pa. L. Rev. Pennumbra 134 (2008) (debate with Steven G. Calabresi). []
Cite as: William Baude, Constitutional Officers: A Very Close Reading, JOTWELL (July 28, 2016) (reviewing Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5 Brit. J. Am. Legal Studies 95 (2016); Seth Barrett Tillman, Originalism & the Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014)), http://conlaw.jotwell.com/constitutional-officers-a-very-close-reading/.
 
 
Discussion

7 comments
  1. 1
    On July 28, 2016 at 1:07 pm, JackWayne said:

    All this is to say that the Constitution is a very sloppy document, deliberately written by LAWYERS to be sloppy. Which is why the Constituion is a failure. By the way, this is an old argument. The Anti-Federalists saw the problem very clearly.

     
    • 1.1
      On July 28, 2016 at 1:59 pm, Douglas Loss said:

      Evidently you didn’t read the article. It argues exactly the opposite of what you claim, that the Constitution is very precise in its definitions and descriptors.

       
  2. 2

    Yup, American flags and space landing material is on the Moon, but the Constitution is a failure. Yup, Socialist Nazis were beat in 1945 by the Allies, but the Constitution is a failure. Yup, Imperial Japan was beat in 1945 by the Allies, but the Constitution is a failure. We need more, not less, such failure… do we not?

    How about defunding the Global Progressive Agenda (which calls the Constitution a failure) from K-12, university, law-journalism-film schools; replacing the anti-Republic-suicidal pedagogy with Western Enlightenment! Yup. Can do.

     
  3. 3
    On July 28, 2016 at 2:16 pm, John Thompson said:

    It is not the case that the Speaker of the House will necessarily have been “elected by the people”.

    It is true that each Speaker has heretofore been an elected Representative, and perhaps as a practical matter that will always be so. But the Constitution neither requires this nor otherwise imposes any other eligibility limitations.

     
    • 3.1
      On July 28, 2016 at 4:24 pm, Tim Curlee said:

      That is correct. When Speaker Boehner resigned there were people floating names like Newt Gingrich as his replacement

       
  4. 4

    Comment: Tillman on Baude on Tillman on Office and Officer as used in the Constitution of 1788

    I thank Professor Baude for his many very kind words. I have only a few clarifications and comments by way of response: some general, some technical.

    First, it was never my intent to lead a crusade. Indeed, I like to write about, and do write about, legal topics—other than Office and Officer—from time to time. Unfortunately, every time I try to extricate myself from the Office and Officer issue, I find myself again and again painfully saying: “Just when I thought I was out, they pull me back in.” Moreover, I would be pleased, very pleased, if others—including students looking for research topics—would join me in this project (even if only to critique and challenge what I have written to date). There is still so much to be done. Because I now live abroad—in Ireland—I find myself immersed more and more in the law and policy of this jurisdiction. As such, in the future, I must expect to have less time to devote to this line of research. If this line of inquiry is to prosper, then others will have to join in the project. I cannot be more plain: this is an invitation to one and all.

    Second, my position is that Office … under the United States is meaningfully distinguishable from other Office terminology used in the Constitution. However, Office … under the United States has several variations. These include: (i) Office under the United States, (ii) Office of Trust or Profit under the United States, (iii) Office of Profit or Trust under [the United States], and (iv) Office of honor, Trust or Profit under the United States. As a purely theoretical exercise, it is possible to imagine a congressionally-created position that might be in one of these categories, but not in others. But, as a practical matter, I believe that each position Congress has created (or authorized), or is likely to create (or authorize), is either in all of these categories, or it is in none of them. As a practical matter, I believe the Constitution’s variants on Office … under the United States are coextensive. Why that is so is a matter of considerable interest (at least to me), but it is far too complex to address in these comments.

    Third, as to Washington’s two diplomatic gifts … only one of them was made in full public view. LaFayette, then a French official, gave President Washington the key (actually one of many extant keys) to the Bastille. The gift was widely reported at the time in American newspapers. The other gift—a full-length framed portrait of Louis XVI—was made by the French ambassador via private correspondence. However, many must have known about the gift of the portrait: it was on display in Washington’s anteroom, beyond which he entertained official visitors. I would characterize Washington’s actions here as reasonable disclosure by a faithful fiduciary. But even if my characterization is too generous, it cannot be doubted that Washington received, acknowledged, and kept the portrait: all absent congressional consent per the Foreign Emoluments Clause. For all these reasons, I conclude that Washington and his contemporaries did not believe that this clause, and the clause’s Office … under the United States language, applied to the President.

    Fourth and finally, Professor Baude writes: “So if ‘Officer’ and ‘Officer of the United States’ are the same thing, the presidential succession statute is unconstitutional … an argument made by James Madison ….” My own view is that this statement is incorrect. It is a legal and historical meme or myth. Madison never “made” any such argument. The original source involved indicates only that Madison was relaying news from the capital to Pendleton in Virginia—in private correspondence. These arguments were “made” not by Madison, but by others on the House floor during debate on the Presidential Succession Act of 1792. I have no reason to believe that Madison agreed with this particular argument—and there is no record (as far as I know) of Madison’s having “made” this argument in House debate or in any other public forum. There are those today who wish to impugn the constitutional bona fides of the modern Presidential Succession Act of 1948, which like its 1792 predecessor, permits legislative officer succession. There are policy grounds for objecting to the 1948 Act, but rooting a modern constitutional objection in Madison’s voice is ahistorical. I would ask all those (and there are many) who have supported their position by arguing that Madison was one of their number to take another good hard look at the full documentary record.

    Seth
    Lecturer, Maynooth University Department of Law
    seth.tillman@nuim.ie

    PS: Three lesser Tillman-authored publications on Office and Officer which did not make it into Professor Baude’s list include: (i) Seth Barrett Tillman, Closing Statement, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 NW. U. L. REV. COLLOQUY 180 (2013), http://ssrn.com/abstract=2012803; (ii) Seth Barrett Tillman, Member of the House of Representatives and Vice President of the US: Can Paul Ryan Hold Both Positions at the Same Time?, JURIST–FORUM, Aug. 23, 2012, http://jurist.org/forum/2012/08/seth-barrett-tillman-vice-presidency.php; and (iii) Seth Barrett Tillman, Letter to the Editor, Oath of Officers, 15(3) CLAREMONT REVIEW OF BOOKS 11, Summer 2015, http://ssrn.com/abstract=2623473. Furthermore, a few of my papers either generated full-length responses or appeared in conjunction with other publications.

     
  5. 5

    Here are my comments: Seth Barrett Tillman, Comment: Tillman on Baude on Tillman on “Office” and “Officer” as used in the Constitution of 1788, THE NEW REFORM CLUB (July 29, 2016, 6:20 AM), http://tinyurl.com/j98h47j