Thursday, September 21, 2017

The Textual Argument That the President Does Not Hold an "Office Under the United States"

On Tuesday, in the Trump Hotel emoluments cases, Seth Barrett Tillman and Josh Blackman filed an amicus brief in the District Court for the District of Columbia, and a motion for leave to file a response to an amicus brief of several legal historians in the Southern District of New York, in support of Professor Tillman's distinctive originalist position that the President does not hold an "office of profit or trust under [the United States]" and therefore is not regulated by the Foreign Emoluments Clause.  Much more attention has been given, on "appellate Twitter" and Josh's blog, to the latter filing.  

That filing, as readers of this post likely know, addresses the legal historians' brief's claim (subsequently expatiated upon in strong terms on "Take Care" by one of the amicus historians and counsel for plaintiffs themselves) that in 1793 Alexander Hamilton prepared a list for the Senate of persons holding "office under the United States" and their respective salaries that included then-President Washington and then-Vice President Adams, and that Professor Tillman had failed to disclose the existence of this document in his recent writings and misrepresented its authenticity in his initial SDNY brief.  In reality, it appears that the only authentic copy of this 1793 list did not include Washington or Adams, and that the list on which the plaintiff-amici legal historians and plaintiffs' counsel relied is a bad copy, probably prepared decades after the original, as Tillman had been claiming for years; at least, so say five experts in the relevant field with great confidence.  This would seem to definitively clear the air on an important though hardly dispositive document, besides whatever it says about the plaintiff-side "Take Care" contributors' efforts to attack Tillman personally.**

 **10/3:  I should note here in fairness to those contributors that the historian amici have graciously apologized to Tillman and Blackman, retracted what they wrote in their brief on this matter, announced that they now believe Tillman is probably right about the provenance of the alternate version of Hamilton's list, and repudiated plaintiffs' counsel's posts, which they say they were "wrong to cite" in their brief and now characterize as "mistaken."  The other people I mention above, however, have not apologized or retracted their comments at all, and one, Brianne Gorod, has even suggested that there remains an "ultimately immaterial" but "fascinating academic discussion to be had about the provenance of these . . . documents."  With all respect, the only discussion left to be had—one that Gorod previously said was terribly "important to know everything" about and "even took a trip to the National Archives" to investigate—is precisely which year the faulty scrivener's copy that Gorod promoted was prepared.  What's always been obvious is that the signature Gorod trumpeted as "none other than Alexander Hamilton['s]" is a copyist's fake, something that a two-second Google Images search for Hamilton's distinctive signature would have revealed.

The more interesting of these filings, however, for people who have an interest in the substance of this litigation, as opposed to litigious antics, is the new Tillman-Blackman amicus brief filed in DC, which lays out their position in full.  I must disclose here that I was kindly asked to review this brief in draft, not because it was assumed that I would be sympathetic to it, but because it was expected that I would be skeptical.  I was very skeptical indeed of Tillman's position at first, the necessary consequences of which include: (a) that Presidents and members of Congress are not covered by the Foreign Emoluments Clause, (b) that the Incompatibility Clause, which prohibits holders of office under the United States from serving in Congress, does not prevent the Speaker of the House or Senate Majority Leader from simultaneously serving as President, (c) that the President can be a member of the Electoral College notwithstanding the Elector Incompatibility Clause, which prohibits holders of office under the United States from serving in the Electoral College, and (d) that Congress cannot bar an impeached President from running again for the Presidency, notwithstanding the Disqualification Clause, which allows Congress to disqualify impeached officials from serving in any office under the United States.  These seem like fairly odd rules, and I happen to be someone who believes that oddity is a cognizable constitutional-interpretive consideration, both by way of gauging what the Constitution was likely intended to mean by its drafters or understood to mean by its ratifiers, and as a perfectly legitimate freestanding consideration of its own.

However, as I reviewed the drafts of Tillman and Blackman's brief and read the various responses to Tillman's articles that have been written over the years by some of the academy's leading originalists, most of which were sharply critical, I began to become convinced not only that there is a very serious textual argument for Tillman's position, but that it was difficult to see what an adequate textual rejoinder would look like.  None, I believe, has yet been offered. 

I do not think this textual argument is entirely made or entirely clear in Tillman's brief or perhaps even in his articles, which dwell as much on historic practice as on text and pull several textual punches.  Unlike the brief's authors, or many originalists, I am not someone who attaches profound importance to who Hamilton listed as an officer under the United States in 1793, or whether then-President Jefferson accepted a bust of the Czar of Russia without asking for permission from Congress.  These instances of practice seem to me, at best, indicia of what a couple high-ranking officials made of the Constitution near its ratification, no more or less weighty than the EPA Administrator and her deputy's near-contemporaneous understanding of the Clean Air Act—information in which the connoisseurs of Tillman and Blackman's sort of argument tend to have little to no interest.  I am, however, interested in constitutional text, especially a part of the Constitution's text as little-interpreted as this one, and I think any reader will agree that under normal, humdrum rules of textual interpretation, Tillman's initially counterintuitive claim that the President does not hold an office under the United States is at least a very plausible reading of the text if not indeed the best.

A.  Officers of the United States

To begin with, we need to defuse a very natural objection—that it is so obviously the case that the President holds an office under the United States that any other reading of the text is trivially wrong.  The Foreign Emoluments Clause provides that "[n]o title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state."  The antecedent of "them" in "no person holding any office of profit or trust under them" is, of course, "the United States.  Does the President hold an office of profit or trust under the United States?  

Well, the argument would go, the text of Article II, section 1, clause 1 tells us that the President shall "hold [an] Office."  (Likewise, section I, clauses 5, 6 and 8 refer to the Presidency as an "Office.")  And, the same clause refers to him as the "President of the United States."  Certainly the Presidency is an office of "trust" or "profit," and while an "office under" the United States is a funny, antiquated way to talk, surely an "Office" in the government of the United States, indeed at the very head of it, is an "office under" the United States.

This argument, however, proves a bit too much, because it is almost unambiguously the case that the President is not an "officer of the United States," a phrase that appears several times in the Constitution, even though he textually holds an "Office" the very title of which says is "of the United States."  This is most clearly the case in that the Appointments Clause requires that "all . . . officers of the United States" be appointed, not elected, by the President or by some other constitutionally provided mechanism.  The Appointments Clause famously provides that the President, "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," though Congress may vest appointments of inferior officers in the President alone or heads of departments.  So, to be an "Officer of the United States," either the President must appoint you with the advice and consent of the Senate, or your appointment must be "herein otherwise provided for" in the Constitution.

Now, the President of course does not appoint himself, nor the members of Congress.  But nor are their "Appointments . . . herein otherwise provided for" in the Constitution; the President is, in the language of Article II, section 1, clause 1, "elected," as are the members of the House, see Article I, section 2, clause 2, while the members of the Senate were, under the original Constitution, "chosen by the [state] Legislature" in an "Election," see Article I, section 3, clauses 1–2.  The word "appoint" is used with circumspection throughout the Constitution to refer to literally appointed, unelected officials of various types, such as Senators temporarily appointed to midterm vacancies, see Article I, section 3, clause 2, officers in state militias, see Article I, section 8, clause 16, and the ambassadors, ministers, and judges of the Appointments Clause itself.  Definitionally, then, an officer of the United States is an appointed officer.

Moreover, Article II, section 3 charges the President with the duty to "commission all the Officers of the United States," just as he must appoint "all" officers of the United States less those whose appointments are constitutionally committed elsewhere.  But no President has ever self-commissioned or commissioned his successor; nor has any President ever commissioned members of Congress, to my knowledge.  This isn't because commissions are formal niceties.  Presidents still commission federal judges to this day; a confirmed judge cannot serve, indeed is not a judge, until he receives his judicial commission from the President.  And Marbury, of course, is a testament to how essential the founding generation viewed the delivery of the constitutionally requisite commission to serving as a judicial officer of the United States.

Further still, Article II, section 4 provides that "[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment," raising the obvious inference that the President and Vice President are not themselves officers of the United States.  (Were they officers of the United States, they would undoubtedly be civil, i.e., non-military, officers of the United States.)  And further yet, we know that the original version of this clause said that the President, Vice President, and "other" officers of the United States could be impeached, and that the Committee of Style, which made technical corrections to the proposed Constitution, tellingly excised "other."  Professor Calabresi has suggested that the word "other" was redundant because it was somehow already obvious that the President was an officer of the United States; not only isn't it obvious, that argument raises the question of why, if the Committee of Style were so concerned about redundancy, it wouldn't remove the five words "the President, Vice President, and" from the clause as well, which would be, on this view, far more redundant.  Indeed, it is far from apparent that "other" would on Calabresi's own view be redundant at all; does a phrase like "A, E, and all English vowels," as opposed to "A, E, and all other English vowels," really make sense?  The former is like saying, "A, E, and A, E, I, O, and U."

Finally, the Constitution's Oaths Clause, Article VI, section 3, requires that "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."  One might assume that the President was an executive officer of the United States.  Yet Article II, section 1, clause 8 specifically provides a particular oath for the President, one which does not refer to "supporting" the Constitution (unlike the oath Congress requires all executive-branch officials besides the President to take, in keeping with the Oaths Clause), but to preserving, protecting, and defending it.  If the President were an executive officer of the United States, he would be covered by the Oaths Clause and the presidential oath clause in Article II would either be unnecessary or require the swearing of a second oath on top of the general executive-branch oath to "support" the Constitution.

As far as officers of the United States go, then, the Constitution all but textually compels the conclusion that the President is not an officer of the United States.  This should at least make us willing to doubt, or pause before we assume, that the President holds an "office under the United States" just because the Constitution provides that he holds an "office" in the United States government; one could likewise assume with equal logic that the President was an officer of the United States, and yet would be wrong.  Indeed, were one simply engaging in a plain-language intuitionist interpretation of "officer of the United States" and "office under the United States," one would be more likely to suppose that the President was an officer of the United States but did not hold office under it.

B.  Offices Under the United States.

1.  Members of Congress plainly do not hold office under the United States.

What of offices under the United States?  Perhaps, one might suppose, the difference between offices under the United States and officers of the United States is that the former includes the Presidency and seats in Congress and the latter does not.  But this is clearly at least half-wrong.  The text of two clauses of the Constitution makes it quite plain that members of Congress do not hold office under the United States.

To begin with, the Incompatibility Clause provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."  Whether this prohibits the President from being a member of Congress or not, it certainly can't prohibit a member of Congress from being a member of Congress, yet that's just what it would do if members of Congress were deemed to hold "any Office under the United States."  Were members of Congress holders of office under the United States, the clause would be as nonsensical as saying that "no holder of federal elected office shall be the President."

Second, the obscure Elector Incompatibility Clause provides a strong anti-surplusage kick to the view that members of Congress do not hold office under the United States.  It says that "no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."  Like the clause subjecting the President and Vice President to the impeachment power, it is difficult to see why the drafters of the Constitution would specifically refer to Senators and Representatives if they were persons holding offices under the United States.  Indeed, sentences with this structure scan as almost nonsensical, or at least extremely ill-formed, if redundant; for example, "no mouse, gerbil, or animal was harmed in the making of this film."

2.  But do Presidents?

Now, it is just conceivable that the difference between officers of the United States and offices under the United States is that the latter includes Presidents and Vice Presidents, while both leave Congress out.**  I think there are six problems with that.  First, and weakest, a different part of the Incompatibility Clause than the part I've quoted links offices under the United States with appointment, as the Appointments Clause ties officer-of status to appointment.  It provides that "[n]o 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."  This part of the clause prohibits a member of Congress from being appointed to any civil office under the United States the salary of which has increased during the time that member was in office.  

Presidential salary has increased over the years, of course, so were the Presidency an office under the United States, it could in theory fall under the prohibition of this clause.  Yet if the Presidency were an office under the United States, "any civil Office under the Authority of the United States. . . the Emoluments whereof shall have been increased during such time" can't really mean any civil office under the United States, because appointment (which is what the clause prohibits, not appointment or election) to the Presidency is an impossibility.  Tellingly, Madison advanced the compromise that was ultimately ratified by arguing that "no office ought to be open to a member, which may be created or augmented while he is in the legislature."  Yet if Madison saw the Presidency as an office under the United States, the clause as written contains a loophole relative to what he sought to achieve; on the other hand, if he thought that offices under the United States were definitionally appointed offices, the clause as ratified makes sense.

** Akhil Amar has advocated in this paper (according to Tillman at least, though I find Amar's position as to the Presidency opaque with the exception of these ipse dixits in his book) for a cousin of this position, on which officers of and holders of office under are synonyms and both include the President and exclude members of Congress.  This position strikes me as all but indefensible, and in any event he gives no positive argument for the inclusion of the President. 

Second, there doesn't seem to be any evidence that anyone at the framing held a hybrid view of offices under the United States, on which the phrase included appointed federal officers, elected executive-branch offices, but not elected legislative-branch offices.  The plaintiffs' legal historian amici have pointed out that George Mason and Edmund Randolph, the country's first Attorney General, said that the Foreign Emoluments Clause applied to the Presidency.  But as Tillman and Blackman say in response, Mason and Randolph also believed that members of Congress could be impeached, which is to say they believed that they were officers of the United States (see Article II, section 4), despite strong textual indications to the contrary, and despite what's almost universally viewed as the Senate's conclusion in 1799 that it lacked the power to convict impeached members of Congress (though see this interesting article arguing that the Senate didn't actually make that determination).  The point isn't to impugn Mason or Randolph as interpretive sources or to suggest that if they were wrong on one thing they had to be wrong on another; it's that they don't support the hybrid view.  Plaintiffs or their amici haven't identified a framer or founding-era source that supports what has to be their theory of the case:  that Presidents hold office under the United States while Congressmen do not.

Third, it seems extremely difficult to me to understand what theory would underlie this hybrid understanding of offices under the United States, or how anyone at the framing would have known that "office under the United States" was a term of art that included the Presidency but excluded seats in Congress, especially without leaving any evidence of their talking about the term in this way.  I can understand, or at least acclimate myself to, a linguistic convention on which only appointed federal officials were deemed officers of the United States or holders of office under the United States.  I can't quite grasp a convention, though, on which Presidents and Congressmen weren't thought officers of the United States, as I think is clear, on which Congressmen weren't deemed to hold office under the United States, as I think is also clear, but on which Presidents were deemed to hold office under the United States.  What theory of "office under" as distinct from officer of would underlie these strange distinctions?  

More fundamentally, even if "officer of" and "office under" could be defined in this way on some hidden logic, how would anyone in the ratifying conventions or in the debates at the Constitutional Convention have understood these reticulated definitions of these newly invented terms of American law without at least some explanation or clarification in those debates or indeed in the text itself?  A widely, though not universally shared understanding that general references in the Constitution to officers and offices did not include elective office seems like the much simpler explanation of how people could have coordinated around and voted on the text we have today.

Fourth, and critically, it in fact does appear that there is an explanation for how people were able to vote on the Constitution and agree to its language without further textual or extratextual explanation of what its many opaque references to offices under the United States meant.  And that is that, as Tillman and Blackman explain at pages 7–8 of their brief, there is a quite old British tradition, dating back to at least 1707, of using the phrase "office under the Crown" to refer to appointed offices, and an equally old British tradition of distinguishing elective offices from offices under the Crown. The richest source they cite is this 1941 Attorney General memorandum, which traces the history of understandings of "office under the Crown" back into the seventeenth century.  What is quite clear is that by 1707 British statutes, written much like our Constitution's Incompatibility Clause, forbade members of Parliament from holding offices under the Crown—an incoherent proscription if members of Parliament themselves held such office.  This settled British legal and linguistic tradition of understanding office under the Crown to exclude elected office explains how the framers and ratifiers could have coordinated around the otherwise cryptic and novel phrase, "office under the United States."  Indeed, something like a practice of this kind is almost necessary to explain how such coordination was possible.

Fifth, while I share the textualist impulse to think that there must be some important difference between officers of the United States and offices under the United States, it is perfectly possible that the framers simply referred to offices under the United States when they spoke in the abstract of offices (as they had to in order to talk about offices of profit or trust), and officers of the United States when they spoke in the concrete of officers.  It does not appear, after all, that the Constitution ever refers simply to offices of the United States, or to "officers under" the United States.  I find this explanation of the variation in phraseology quite plausible.

Alternatively, Tillman has provided a plausible account of the difference that is at least borne out by unbroken practice from 1789 to the present day.  This is that "officers of" the United States do not include appointed legislative-branch officers, such as the Secretary of the Senate or the Director of the Congressional Budget Office.  Offices under the United States, on the other hand, do, he claims, include these offices.  

The argument from practice and structure that legislative-branch officers are not officers of the United States, no matter how high-ranking, is very strong.  While Article II, section 3 requires the President to "commission all the Officers of the United States," the President has never commissioned a legislative-branch officer.  And while "all civil officers of the United States" are impeachable under Article II, section 4, it would seem unnecessary to extend the impeachment power to legislative-branch officers given that Congress implicitly has the power to remove those officers, given, in turn, each House's textually committed power in the fifth clauses of Article 1, sections 2 and 3 to appoint those "Officers."  Here too, we see that we cannot reason from the Constitution describing a federal official as an "Officer" to the conclusion that he necessarily is an "officer of" or holds an "office under" the United States; Article 1, section 2, clause 5 provides that "[t]he House of Representatives shall chuse their Speaker and other Officers," but no President has ever commissioned a Speaker of the House or any other officer of the House as an officer of the United States.  

I have two quibbles with this argument.  The first and more serious is that while Tillman makes a strong argument that legislative-branch officers are not officers of the United States, I don't see the positive argument for concluding that legislative-branch officers do hold office under the United States.  If they do, the Incompatibility Clause prohibits the Clerk of the House or the Secretary of the Senate from being a Congressman or Senator—a good idea, perhaps, but not quite the sort of thing one would expect to rise to the level of unconstitutionality.  Moreover, claims that legislative-branch officers hold office under the United States and are thereby constitutionally excluded from membership in Congress are complicated, quite a bit, by the House's officers clause just quoted above, which says that "[t]he House of Representatives shall chuse their Speaker and other Officers . . . ."  If the Speaker, who is an "Officer" of the House, can be a House member, why can't the "other Officers," which the clause lumps together with the Speaker?  And how would we know which legislative-branch officers, like the Speaker, can serve in Congress, and which can't because they hold office under the United States?

The second quibble is the opposite concern; the Appointment Clause's implication that there are officers of the United States "whose Appointments are . . . otherwise herein provided for" by limiting the President's Senate-confirmed appointment power to officers of the United States "whose Appointments are not otherwise herein provided for" makes me wonder if those otherwise herein provided-for officers are the "Officers" appointed by each House.  However, this is just an implication, and the language may merely be a careful savings clause inserted in case there were such appointments provided for later in the drafting process, or in a subsequent amendment.  Further, to the extent otherwise-herein-provided appointed officers of the United States are implied, it is possible that these could be found in the Recess Appointments Clause (an exception to the normal Appointments Clause procedure) or the inferior officers discussed in the Appointments Clause, or the members of the Electoral College, who the states "appoint."  And it is also possible that they can be found in the "Officers" of the militia, the appointment of which Article 1, section 8, clause 16 leaves to the states, even though the state militias could be, under that clause, "employed in the Service of the United States," and thus might be viewed as containing officers of the United States that are appointed in a manner "otherwise herein provided."

My sixth and final problem with the hybrid reading of office under the United States is the Presidential Emoluments Clause.  It is not dispositive, but certainly suggestive, that the President in fact has his own Emoluments Clause, which reads, in full: "The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them."  Nothing is said here about foreign emoluments; what is proscribed, interestingly, is payment by state governments.  Of course, it is possible that the President is both regulated by the Foreign Emoluments Clause as a holder of office under the United States, and by the Presidential Emoluments Clause as the President.  But ratifiers attempting to understand the Constitution could certainly have drawn a fair intratextual inference that the President was not covered by the Foreign Emoluments Clause and did not hold office under the United States.  How anyone reading the document at the time would have drawn the opposite inference—that Presidents did hold office under the United States, while members of Congress did not—escapes me at the present time.

3.  A closing comment.

My intention here has not been to provide anything like a conclusive argument that Presidents (at least as a textual matter) do not hold office under the United States.  My intention, rather, has only been to show that there is a strong argument that they do not that needs to be taken far more seriously than it has been, not just because Hamilton prepared a report that supports the view or because Tillman's critics have made spurious claims about the historical record or Tillman himself, but because the text of the Constitution tends to support it.  

I do believe that much work remains to be done in this regard, precisely because so much of the literature and briefing taking the position that Presidents hold office under the United States has been so peremptory.   The weakness of that side of the literature, in my view, is not necessarily a sign of a weak position so much as it is a function of the position's strong intuitive appeal, both in a casual plain-language sense and as a matter of policy, such that the position has seemed too obvious until now to need much defense from a lone scholar.  My hope in writing this post has been to at least help dissolve the sense that the Presidency's status as an office under the United States is beyond debate, so that scholars, researchers and lawyers inclined to support that proposition can begin the textual and historical work of explaining why it is correct, and so that scholars, researchers and lawyers who come to this question in a spirit of genuine inquiry can continue the work that Professor Tillman has so ably started.

8 comments:

  1. Section A, para. 1 - I think "diffuse" is a typo.

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    1. Same in the last paragraph.

      https://brians.wsu.edu/2016/05/25/defuse-diffuse/

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    2. Thanks. I wish things were the other way around; diffuse, if you think it's a verb, sounds like you're spraying a cleansing mist, while defuse, of course, sounds like you're taking a fuse out of a bomb, which is rather more martial than I'm going for here. I think I'll look into a different word altogether. Thanks again.

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  2. Why can't the presidency be an "office under the United States," but the President not be an officer?

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    1. It's possible and I don't claim that it necessarily follows from my conclusion that he isn't an officer of the United States that he doesn't hold an office under the United States. However, I ultimately infer from the apparent exclusion of seats in Congress from the class of offices under the United States, the linkage - not an absolute one, to be sure - between appointment and holding office under the U.S in the Appointments Clause, the British understanding of office under the Crown to exclude elective office, the obscurity of the "President yes, Congress no" meaning that seems to be the only way to getting to the President, and the fact that no framing-era source supports that meaning, that the better reading of the text is that the holders of office under hold appointed offices only. Indeed, I think it quite possible that the holders of office under just are the officers of the United States - as the OLC thought for a long time, see Grewal's post on this subject - and that there isn't a hidden broader meaning of office under distinct from being an officer of.

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    2. Sorry, where I write "Appointments Clause" I meant to write "Incompatibility Clause."

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