It's quite a process to formally to submit an amicus brief to the Supreme Court, and I learned that firsthand recently. You need a lawyer, for one (which I am not), and to have it professionally printed, among other things, the two of which alone can easily total in the thousands of dollars. While I wasn't able make it happen officially this time, I still wanted to submit the brief I tried to file to the Court, and to do so by the Court's January 31st deadline for this case, and within the 8,000 word limit the Court has as well. For those of you tired of hearing about Section 3, you'll get a reprieve until at least February 8th (when oral arguments for the case happen at SCOTUS). For those of you who can't get enough, however, I encourage you to check out the Court's docket for the case so you can read the other amicus briefs. You can find it here: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-719.html
I. Introduction
In Is the President an “Officer of the United States”? Originalism vs. Textualism, I recently investigated both the text of the Constitution and the historical record for an answer to this question. My research overwhelmingly concluded that the answer to this question is “yes.”
II. Does The Text of the Constitution Tell us Who an “Officer of the United States” is?
If the text conclusively tells us who, or what, an “officer of the United States” is, then we need look no further. But unfortunately for us, it does not, and attempting to answer this question using the words of the document alone quickly leads you down a constitutional black hole.
At first glance, the Appointments, Commissions and Impeachment Clauses in Art. 2 §2, §3 and §4 lead you to think that “officers of the United States” are only those appointed by the president and confirmed by the senate, or additionally, in the cases of “inferior officers,” those appointed by “the president alone,” “the Courts of Law” or “the Heads of Departments.” After all, those provisions say 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.” Furthermore, the Commissions Clause in Art. 2 §3 states the president “shall Commission all the Officers of the United States.” Surely the president doesn’t appoint or commission himself, the argument goes, so how can they be an officer? Lastly, in the Impeachment Clause of Art. 2 §4, it says “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment…” Surely if the president and vice-president were “civil officers of the United States,” the clause would say “and all other civil officers of the United States”, right?
The first thing to highlight in response is that the Constitution says repeatedly that the presidency is an office, and that the president holds that office (see principally Art. 2, §1, but also §4). Thus, in order to believe the president is not “an officer of the United States,” you have to believe the presidency is an officer-less office. Theoretically you could plausibly call the president a mere “officer,” but if the President of the United States isn’t an “officer of the United States,” what is he an officer of? The Government…of the United States?
The Impeachment Clause, however, gives us the connection between officers and those holding office. “The President, Vice President and all Civil Officers of the United States,” it says, “shall be removed from Office on Impeachment.” (emphasis mine) Thus, if the “President”, “Vice President” and all “Civil Officers of the United States” hold offices, and civil officers are obviously officers, how likely is it that the president and vice-president aren’t officers of the United States holding office too?
Art. 6 also makes this connection nicely for us as well. “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,” it says, “shall be bound by Oath or Affirmation, to support this Constitution.” Connected to the Oaths Clause is the Religious Qualifications prohibition, which discusses offices instead of officers, and prevents any “religious test” to be “required as a qualification to any Office or public Trust under the United States.” Did the framers really intend for there to be some officials who would be required to take oaths, but also be subject to religious qualifications tests? Or conversely, for office holders exempt from religious qualifications tests to not have to take an oath to support the Constitution? This seems obviously repugnant to their intentions, and clearly indicates their synonymous use of “officers” with those holding office.
But let’s stay with Art. 6 for a moment. If holding an office doesn’t necessarily mean you are an officer, it seems to result in a curious situation for the vice-president. The last provision of Art. 2 §1 specifically lays out the oath that the president has to take upon taking office, but it does not provide any explicit instructions or requirement for the vice-president. If the vice-president isn’t an “executive or judicial officer,” however, and he obviously isn’t a senator or representative of congress, nor is he a member of any state legislature, then does he actually need to take an oath to support the Constitution at all?
One plausible, albeit less obvious reading of the original constitution is that the vice-president is an officer under Art. 1 §3, which states “The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.” The first question that arises from this is if the senate can pick their “other officers,” who exactly is the reference officer? Should this clause be read to mean that senators are “officers”? Or does the sentence before this, which states that “the Vice President of the United States shall be President of the Senate...” indicate that the reference officer is actually the vice-president? Proponents of the president-isn’t-an-officer theory would have you believe the absence of the word “other” before “civil officers” in the Impeachment Clause in Art. 2 §4 is significant, but if its absence there is important, its inclusion in Art. 1 §3 ought to be just as significant. In this case, it implies the vice-president is an “officer,” and if the vice-president of the United States isn’t an “officer of the United States,” what is he an officer of? The senate? And then only sometimes? Even if the vice-president is somehow only an officer of the senate, however, this still wouldn’t absolve the vice-president of the Art. 6 oaths problem we just discussed, since that provision does not seem to require officers of the congress to take an oath. It also creates a bizarre situation where the vice-president could be an officer as vice-president, but upon potentially assuming the office of president, he would no longer be so.
This overly strict reading makes a mockery of both the Constitution and of Textualism more generally, but this is done deliberately to show how reading the Constitution’s words this literally not only doesn’t tell us who, or what, an “officer of the United States” is, but it debilitates many of the most important provisions and principles of the Constitution itself. We ought to take the words seriously, but not so seriously that it renders our most important governing document full of “drafting errors” subject to clever legal loopholes. Reasonably reading the words of the Constitution while also respecting its clear and obvious intentions easily leads to the conclusion that both the president and vice-president hold offices, and consequently, that both are “officers of the United States.” Take this approach, and the space shuttle of state avoids the constitutional black hole.
III. Evidence from the Constitutional Convention and Ratification
If the text of the Constitution alone does not tell us who, or what, an “officer of the United States” is, then we ought to look to historical evidence and contemporary understanding for help.
The lack of an answer from the text alone is actually not surprising when you examine the historical record of the Constitutional Convention. The term “officer” is used abundantly and broadly throughout that summer in Philadelphia, including to describe members of Congress, the president, the vice-president, judges (both of the Supreme Court and otherwise) and many other kinds and calibers of government officials. It is exactly for this reason why defining “officer of the United States” as a “legal term of art” is a challenge. We’re looking for a tighter definition from a group of men who never actually came up with one.
Consider first the following comments on the president and vice-president’s officer status from the Constitutional Convention[1]:
On June 1st, 1787, Madison questions whether executive should be a “single officer” or not
Gunning Bedford Jr, a delegate from Delaware, states later that day that “he was for appointing the Executive Officer for three years, and that he should be eligible for nine years only.”
On June 2nd, John Dickinson Jr., another Delaware delegate, proposed “that the Executive be made removeable by the National Legislature on the request of a majority of the Legislatures of the Individual States.” “It was necessary,” Farrand reports him saying, “to place the power of removing somewhere. He did not like the plan of impeaching the Great Officers of State.”
Responding to Dickinson’s motion, Madison and Pennsylvania delegate James Wilson “observed that it would leave an equality of agency in the small with the great States; that it would enable a minority of the people to prevent ye removal of an officer who had rendered himself justly criminal in the eyes of a majority.”
On July 20th, Pennsylvania delegate Gouverneur Morris said “the Executive ought therefore to be impeachable for treachery; Corrupting his electors, and incapacity were other causes of impeachment. For the latter he should be punished not as a man, but as an officer, and punished only by degradation from his office.”
On July 21st, Madison says “the Executive Magistrate would be considered as a national officer, acting for and equally sympathizing with every part of the U. States.”
On July 24th, the re-eligibility of the Executive was discussed again, and Wilson stated “It seemed to be supposed that at a certain advance of life, a continuance in office would cease to be agreeable to to the officer, as well as desirable to the public.”
On July 26th, Col. Mason, in discussing the Executive, states “…the great officers of State, and particularly the Executive should at fixed periods return to that mass from which they were at first taken, in order that they may feel & respect those rights & interests...”
Govr. Morris responded to Mason’s motion. “In answer to Col. Mason's position that a periodical return of the great officers of the State into the mass of the people was the palladium of Civil liberty, he would observe that on the same principle the Judiciary ought to be periodically degraded”
On August 7th, Nathanial Ghorum of Massachusetts “contended that elections ought to be made by joint ballot. If separate ballots should be made for the President, and the two branches should be each attached to a favorite, great delay, contention & confusion may ensue. These inconveniences have been felt in Masts. in the election of officers of little importance compared with the Executive of the U. States.”
On August 24th, the discussion then turned to the method of voting for the president, where John Langdon of New Jersey stated “This general officer ought to be elected by the joint & general voice” of the legislature.
On September 7th, during a discussion of the vice-president potentially being the president of the Senate, Hugh Williamson said “such an officer as vice-President was not wanted. He was introduced only for the sake of a valuable mode of election which required two to be chosen at the same time.”
On September 15th, Col. Mason gave a long speech against the Constitution, including which he said “Hence also sprung that unnecessary (and dangerous) officer the Vice-President…”
So there you have numerous comments from multiple people, including James Madison and James Wilson, that the president (and vice-president) are officers, and no one ever says otherwise.
Also noteworthy is the evolution of the Impeachment Clause at the Convention, which also suggests that the vice-president (and likely by extension, the president) is an “officer of the United States.” For the better part of the summer, the language around impeachment for the executive stated he was “removeable on impeachment and conviction of malpractices or neglect of duty.” The first significant alteration came on September 4th, after the vice-president had been introduced. The clause then stated as follows:
He shall be removed from his office on impeachment by the House of representatives, and conviction by the Senate, for treason or bribery or other high crimes and misdemeanors against the United States; the Vice President and other civil Officers of the United States shall be removed from Office on impeachment and conviction as aforesaid;
Note here the inclusion of the word “other” before “civil officers of the United States.” This clearly seems to imply the vice-president is a “civil officer of the United States.” The Convention then adjourns on September 10th to allow for the Committee of Style to compile another draft. Upon its return, what becomes the Impeachment Clause read as follows:
The president, vice-president, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.
Notice how the president is now no longer separated from “the vice-president and all other civil officers of the United States,” and also notice how the word “other” is removed just before “civil” in the final language. No explanation is given for these changes. Did the vice-president both gain and lose its officer status in that last week of the Convention? What about the president? The most logical answer here given everything else we’ve gone through is that the framers simply didn’t view these changes as significant, and the lack of any commentary or discussion substantiates that. Thus, if the vice-president was an officer on September 4th, its highly likely he remained an officer on September 17th when the Convention adjourned. And if the vice-president is an officer, commissioned directly by Art. 2, it stands to reason the president is too. Furthermore, as we discussed above, the vice-president losing his officer-status upon becoming president (for whatever reason) would simply make no sense.
Interestingly, one other subtle change occurred around the same time that is likely instructive. On September 7th, what became the Presidential Succession Clause was inserted into the draft constitution. It read “the Legislature may declare by law what officer of the United States shall act as President in the case of the death, resignation, or disability of the President and Vice-President.” In what would foreshadow the later presidential succession debates, Farrand’s Records state that objections were made by some that “the Legislature was restrained in the temporary appointment to ‘officers’ of the U.S: (They wished it to be at liberty to appoint others than such)”. Here is the strongest evidence so far that the term “officers” did in fact have a meaning, though sadly we never got any express insight into what that meaning actually was at the Convention.[2]
When the Committee of Style went to work, however, the words “of the United States” survived the first draft, but they did not survive the final product, which ultimately read “Congress may by law provide for the case of removal, death, resignation or inability, both of the president and vice-president, what officer shall then act as president…” Again, no explanation behind the change is provided. Does this mean that the Committee of Style thought there was a difference between mere “officers” and “officers of the United States”, but never felt compelled to discuss that difference? Or did they view these two terms as one and the same? The most likely conclusion here is the latter, and that the removal of the words “of the United States” in the Succession Clause is just as insignificant as the removal of the word “other” in the Impeachment Clause. Neither was likely done to actually change the substance of the clause. If this is the case though, then the term “officer of the United States” simply doesn’t have the strict meaning those in the “legal term of art” camp believe, and the actual meaning instead becomes essentially synonymous with “national” or “federal” officer, which certainly includes the president.
Further evidence of the broad meaning of “officer” and “officer of the United States” comes during Ratification. Consider the following:
Just over a month after the Convention adjourned, on October 24th, 1787, Madison wrote a letter to Jefferson discussing “some observations” on what went down at the Convention. In his discussion of the Executive, Madison states “On the other side it was contended that the prospect of necessary degradation would discourage the most dignified characters from aspiring to the office…(and) would render the officer more indifferent to the importance of a place which he would soon be obliged to quit forever…” Here, after the convention is over, Madison, the father of the constitution, again clearly refers to the president as an officer.[3]
On November 29th, 1787, Luther Martin, who had been a delegate of Maryland at the convention, presented the Maryland House of Representatives with a description of the proceedings in Philadelphia. In discussing the debate over the veto power of the president, he states the following: “The King of Great Britain there composed one of the three estates of the kingdom; he was possessed of rights and privileges as such, distinct from the Lords and Commons; rights and privileges which descended to his heirs, and were inheritable by them; that, for the preservation of these, it was necessary he should have a negative, but that this was not the case with the President of the United States, who was no more than an officer of government, the sovereignty was not in him, but in the legislature.”
Now consider The Federalist. In Federalist 67, Hamilton addresses an argument put forth that the Appointments Clause allows the president to mischievously appoint senators during recesses of Congress. Hamilton seemingly could have easily refuted this argument by saying “senators are not officers of the United States.” But he doesn’t. Instead, he points out that the Appointments Clause only allows for the appointment of officers “whose appointments are not herein otherwise provided for.”
The first of these two clauses, it is clear, only provides a mode for appointing such officers, ‘whose appointments are NOT OTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE ESTABLISHED BY LAW’; of course it cannot extend to the appointments of senators, whose appointments are OTHERWISE PROVIDED FOR in the Constitution, and who are ESTABLISHED BY THE CONSTITUTION, and will not require a future establishment by law. This position will hardly be contested. (emphasis his)
Hamilton’s words “established by the Constitution” are akin to “commissioned by the Constitution.” While the president and vice-president are clearly “established” in Art .2 §1, Hamilton removes all doubt about their officer status in Federalist 69, where he says “The President of the United States would be an officer elected by the people for four years.” He then says so again in Federalist 72 when discussing the re-electability of the president:
…With a positive duration of considerable extent, I connect the circumstance of re-eligibility. The first is necessary to give to the officer himself the inclination and the resolution to act his part well, and to the community time and leisure to observe the tendency of his measures, and thence to form an experimental estimate of their merits….
Additionally, Madison devotes most of Federalist 39 to drawing parallels between the existing state governments (which are already in existence) and the new federal one (which he’s hoping will be adopted). In doing so, he clearly implicates the president as an officer. He says:
According to the constitution of every State in the Union, some or other of the officers of government are appointed indirectly only by the people. According to most of them, the chief magistrate himself is so appointed… The President is indirectly derived from the choice of the people, according to the example in most of the States.
It’s sometimes argued that all these references to the president’s officer status are done “colloquially” and not “constitutionally.” Given the Federalist is an examination of the Constitution itself, it would be strange to say that Madison and Hamilton are somehow only speaking colloquially and not constitutionally.
IV. Evidence After Ratification
The evidence that exists after the ratification of the Constitution almost uniformly points in the same direction.
In the congressional debates over presidential succession in 1791-92, which centered around whether the Speaker of the House and Senate Pro Tempore were “officers,” only once does the president come up. Rep. William V. Murray from Maryland, speaking on February 14th, 1792 in response to an amendment from Elbridge Gerry on presidential electors, explicitly calls the president and vice-president an officer, stating “the first mediates a more equal representation of the wishes of the people of America in the election of the two great officers of the State.”[4] No one said a peep in response, including Madison.
The Blount Impeachment trial later that decade is also often cited as evidence that the president is not an officer of the United States. This too is incorrect. The consensus finding from that trial was that a United States senator, or at least a senator who has been expelled, is not an “officer of the United States,” and thus not subject to impeachment. But what no one ever seems to mention is that in the arguments for that trial, both sides’ attorneys state that the president is an officer of the United States. Consider the following:
In his opening arguments in the Blount Impeachment trial on January 3rd, 1799, prosecuting attorney James A. Bayard said the following about the president:
It is clearly not true that he (the president) commissions all officers of the United States. He is an officer himself, and so expressly denominated throughout the 2d article, and yet he has no commission. It is equally clear that the Vice President is an officer, and yet not commissioned.[5]
Then the next day on January 4th, Senator Blount’s defense counsel Alexander Dallas said the following:
The Constitution declares, that ‘no person holding any office of profit, or trust, under the United States, shall, without the consent of Congress, accept of any present’ etc. May the President, Vice-President, and members of either branch of the Legislature, being, as it is said, officers of the United States, accept a present, or a title, without the consent of Congress?[6]
And then:
By the 6th Article of the Constitution it is provided that ‘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; but no religious test shall ever be required as a qualification to any office, or public trust under the United States; Now, is it reasonable to interpret this article, so as to require the political test only from officers of the United States, that is from the President and members of the Legislature, and not from officers under the United States that is from persons appointed by the Executive? Or so as to exempt officers under the United States, that is, officers appointed from the Executive, from the religious test, while such a test may be exacted from the President and members of the Legislature, under the description of officers of the United States? This cursory analysis is a sufficient refutation of the distinction which has been attempted on a mere quibble, or play of words.[7]
And again:
Does the President nominate or commission Senators or Representatives? No; nor does the Constitution, in any part of it, term them officers, or call their representative station an office. But the honorable manager has said, that the latitude which this position extends would render it necessary that the President should issue a commission to himself, to the Vice-President, and to the Speaker of the House of Representatives, since they are all expressly denominated officers. The Constitution, however, is not chargeable with this absurdity. The President and VicePresident have their commissions expressly from the Constitution itself.[8]
Dallas could have easily taken the opportunity in several instances to say that neither the president or vice-president are “officers of the United States,” constitutionally speaking. But he does no such thing, and instead, he specifically says in several cases that they are officers of the United States. Dallas’s co-counsel, Jared Ingersoll, who was also a delegate at the Constitutional Convention in 1787, reiterates this in his own arguments the next day.
In no way does the Blount case demonstrate that the president as not an “officer of the United States.” If anything, it establishes that the president is an “officer of the United States.” The Blount case tells us that the president’s “commission,” should he personally need one at all, is given by the Constitution in Art. 2 (most logically in the very first sentence of §1, which says “The executive Power shall be vested in a President of the United States of America.”). No one from either side ever says a word otherwise.
Then in Aaron Burr’s treason trial in 1807, Chief Justice John Marshall had the following to say on whether the president could be subpoenaed:
Of the many points of difference which exist between the first magistrate in England and the first magistrate of the United States, in respect to the personal dignity conferred on them by the constitutions of their respective nations, the court will only select and mention two. It is a principle of the English constitution that the king can do no wrong, that no blame can be imputed to him, that he cannot be named in debate. By the constitution of the United States, the president, as well as any other officer of the government, may be impeached, and may be removed from office on high crimes and misdemeanors.[9]
An annoyed President Thomas Jefferson replied in a letter in response to Marshall’s opinion “if the Constitution enjoins on a particular officer to be always engaged in a particular set of duties imposed on him, does not this supersede the general law, subjecting him to minor duties inconsistent with these?” [10] Here then both Jefferson and Marshall call the president an officer.
Then in United States v. Maurice (1823), Marshall, riding Circuit in this case, had the following to say about who, or what, an “officer of the United States” was[11].
If, then, the agent of fortifications be an officer of the United States, in the sense in which that term is used in the constitution, his office ought to be established by law, and cannot be considered as having been established by the acts empowering the president, generally, to cause fortifications to be constructed.
Is the agent of fortifications an officer of the United States? An office is defined to be “a public charge or employment,” and he who performs the duties of the office, is an officer…it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer.
As we said earlier, the Constitution says repeatedly in Art. 2 that the presidency is an office (“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President,” and “neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years…”), and that the president holds that office (“He shall hold his Office during the Term of four Years,” “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office”). If the president holds an office, then it “it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer.”
Other evidence both before and after Maurice points in the same direction too:
In 1803, St. George Tucker, in his View of the Constitution of the United States, stated “All officers of the government, including the president, are impeachable for misconduct in office, and on conviction may be removed, and otherwise punished.”
In 1825, William Rawle, in A View of the Constitution of the United States, agreed, and stated “from the reasons already given, it is obvious, that the only persons liable to impeachment, are those who are or have been in public office. All executive and judicial officers, from the president downwards, from the judges of the supreme court to those of the most inferior tribunals, are included in this description.”
In 1833, Justice Joseph Story, in his Commentaries on the Constitution stated:
§ 627. The truth is, that the States can exercise no powers whatsoever which exclusively spring out of the existence of the national government, which the Constitution does not delegate to them. They have just as much right, and no more, to prescribe new qualifications for a representative, as they have for a President. Each is an officer of the Union, deriving his powers and qualifications from the Constitution, and neither created by, dependent upon, nor controllable by the States.
And in case that wasn’t clear enough:
§ 789. The fourth section of the second article is as follows: "The President, Vice- President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. "
§ 790. From this clause it appears that the remedy by impeachment is strictly confined to civil officers of the United States, including the President and Vice-President.
Some have argued that Story himself subscribed to the logic of the Blount ruling, and thus concluded that the president was not an officer of the United States. This does not appear to be correct. Story’s mere reporting of the Blount case has been consistently misrepresented as his own views. To remove all doubt, in §805 Story explicitly absolves himself of the logic of the Blount case, stating “it is not intended to express any opinion in these commentaries as to which is the true exposition of the Constitution on the points above stated.” Also not to be forgotten is in the very passage that is often cited (§793), Story calls the president and vice-president officers. Story repeatedly refers to the president and vice-president as officers throughout his Commentaries[12], so it would be odd to not edit those other instances out if he did truly believe that neither were constitutional officers, especially given his Commentaries is a treatise on the constitution itself.
V. The Court’s Prior Commentary
None of the Court’s prior precedents foreclose on acknowledging the president as an officer more generally, or specifically for purposes of Section Three. All prior cases focus exclusively on appointed officers, and typically presidentially appointed officers. The Chief Justice’s claim that “the people do not vote for the ‘officers of the United States’” in Free Enterprise v. PCAOB (2009) is case in point. United States v. Smith (1888) is another such case. The Court has rightly distinguished, however, that other officers exist under the Constitution. In United States v. Germaine (1878), for example, the Court says “the Constitution, for purposes of appointment, very clearly divides all its officers into two classes.” (emphasis mine) Why would the Court need to say “for purposes of appointment” if the president and vice-president were not officers? No qualification would be needed if all officers were appointed.
The Court later more explicitly pointed out the often forgotten part of the Appointments Clause: “whose Appointments are not herein otherwise provided for.” In Buckley v. Valeo (1976), the Court stated “Unless their selection is elsewhere provided for, all officers of the United States are to be appointed in accordance with the Clause.” (emphasis mine) Given the commentary from both sides’ attorneys in the Blount Case, as well as from Madison and Hamilton in the Federalist, it’s likely that this “elsewhere provided for” language specifically captures the president and vice-president, who are otherwise “commissioned” in Art. 2 §1.
It’s also important to remember that it is only on modern times that we use the term “appointed” to exclusively refer to un-elected officials. This was not the case at the time of the founding. The terms “elected” and “appointed” were used much more synonymously than they are today, where popular votes matter significantly more in the elections of senators and presidents. Consider Federalist 39 first, where Madison reminds us of how the framers interpreted the term “appointed” more broadly than we do now:
It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified; otherwise every government in the United States, as well as every other popular government that has been or can be well organized or well executed, would be degraded from the republican character. According to the constitution of every State in the Union, some or other of the officers of government are appointed indirectly only by the people. According to most of them, the chief magistrate himself is so appointed. (emphasis his)
Hamilton also seemed to interpret this provision in the same way in Federalist 67, despite the Constitution also clearly saying that senators are “elected.” Otherwise, he could have easily just said 1) senators are not officers, and 2) they are not appointed. Hamilton’s words again:
The first of these two clauses, it is clear, only provides a mode for appointing such officers, ‘whose appointments are NOT OTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE ESTABLISHED BY LAW’; of course it cannot extend to the appointments of senators, whose appointments are OTHERWISE PROVIDED FOR in the Constitution, and who are ESTABLISHED BY THE CONSTITUTION, and will not require a future establishment by law. (emphasis his)
Note again his use of “who are established by the Constitution” and thus “will not require a future establishment by law” (emphasis mine). If senators are captured under this language due to their establishment in Art. 1 §3, it seems clear that the president and vice-president—established by the Constitution in Art. 2 §1—would also be captured.
Also recall here Maryland delegate Luther Martin’s comments to the Maryland Legislature in November 1787 after the Convention adjourned:
As the propositions were agreed to by the committee of the whole House, the President was to be appointed by the national legislature; and as it was reported by the committee of detail, the choice was to be made by ballot, in such a manner that the States should have an equal voice in the appointment of this officer, as they, of right, ought to have.
VI. Is the President and the Presidency Subject to Section Three of the Fourteenth Amendment?
Whether or not the president and vice-president are captured under this part of the Appointments Clause doesn’t change their “establishment” or “commissioning” under the Constitution in Art. 2 §1, however. The two highest office-holders in the land are therefore still officers created by the Constitution. The late David P. Currie said it well. After going through the debates on presidential succession in 1791-92, and then expounding the various relevant provisions in the constitution, Currie concludes “it is difficult to say that the Constitution adopts a single meaning of the term ‘office’ or ‘officer’; each clause employing these terms must be interpreted to its own context, history, and purpose.”[13] This is exactly the conclusion the House Select Committee came to in 1866[14] when it said “the committee decline to find that an acting member of Congress is not an officer of this government within the sense of at least some of the clauses of the Constitution.”
In this case, part of our problem is that we’re trying to put pieces of a puzzle together that were never actually meant to be assembled in the way we’re now attempting. Generally speaking, officers should be thought of as executive and judicial government officials who take an oath to support the Constitution, which would of course include the president. But the best answer to who an officer is depends on what provision of the Constitution we’re talking about. In the case of the Impeachment Clause, members of Congress are most likely not “civil officers.” But should they be considered as “holding any office of profit or trust” and thus “officers” under the Emoluments Clause? Absolutely. Similarly, with respect to the Commissions Clause, the president and vice-president were probably not meant to be captured as “officers of the United States.” But does this mean they’re not “officers of the United States” with respect to the Incompatibility Clause? Absolutely not. As unsatisfying as this may be, it’s the most logical conclusion, and the one most faithful to the founders’ principled anti-corruption intent. The Constitution, after all, was not drafted by ChatGPT, but rather in a hot summer in Philadelphia in 1787, without air conditioning, by a group of 55 men, all of whom had egos and who were all very political. How surprised should we be that inconsistencies resulted?
If a clause-by-clause approach is ultimately best, two last questions remain: is the president subject to Section Three as an “officer of the United States,” and is the president’s office subject to Section Three’s disqualification ban? Historical logic, contemporary understanding of the text, and legislative history all indicate the answer to this question is “yes.”
First, historical logic. It is simply inconceivable that Robert E. Lee or Jefferson Davis could have been prevented from being Secretary of State following the Civil War by Section Three, but could have become president. It is equally inconceivable that had President Johnson participated in an insurrection or otherwise aided to resurrect the former Confederacy after July 1868 (when the 14th Amendment was ratified) that his oath as president would somehow not have counted as an oath as an “officer of the United States,” thereby absolving him of Section Three’s grasp.
Second, contemporaneous understandings of “officer of the United States” included the president. Consider the following:
In 1856, a Senate Judiciary Committee Report on Presidential Succession[15] was produced to reevaluate the 1792 law. It stated: “there are but two officers expressly provided in the election held once in every four years—a President and his substitute the Vice President.”
In 1864, James A. Bayard Jr., Democratic Senator from Delaware and grandson of James A. Bayard Sr. (who led the impeachment managers’ team in the Blount case) gave a speech on the Test Oath[16], and using the Blount case as a key precedent, said the following:
“This decision I cite,” he says, “as an authority of the highest grade for the purpose of determining the question whether a Senator is a civil officer of the United States, or holds an office under the United States, within the meaning of the Constitution.” “All that is asked,” he continues, “is that in the construction of any act of Congress the words ‘office’ or ‘officer’ shall be held to mean an office or officer within the language and meaning of the Constitution.” “There could be no doubt,” he adds further, “that if a Senator was a civil officer, holding a civil office under the United States, he might be impeached, and might be removed from office.”
Bayard then highlights Article 2’s repeated references to the president holding “an office” as a key example of this—and thus why he is an officer—and uses this as a distinction between officers and senators.
Lastly, Bayard highlights a senate request to Treasury Secretary Alexander Hamilton in May of 1792 which required him to provide the senate with a list of the compensation for “every person holding any civil office or employment under the United States, except the judges…”: He says: “To that resolution, in February following, ALEXANDER HAMILTON made his return, and in that return of the persons holding civil offices under the United States, except the judges, he included the President, the Vice-President, all the different officers of the Government from tide-waiters upward…but he did not include members of Congress.” (emphasis his)
In July of 1866, shortly after Congress passed Section Three, the House Select Committee highlighted earlier addressed the issue of the Constitution distinguishing between “officers of the United States” and “offices under the United States.” The report concluded these terms “are made…equivalent and indistinguishable…by the Constitution.” Importantly, however, it also said that “Representatives after the expiration of their terms, the President of the United States after such expiration, and the widows of certain ex-Presidents, all have the franking privilege, and these are not then officers of the Government in any sense.” The report thus concludes that the president is an officer of the United States, and there is no difference between “officers of” and “officers under the United States.” [17]
On June 12th, 1867, President Andrew Johnson’s Attorney General Henry Stanbery issued a second opinion on the Reconstruction Acts. In speaking of the appointed military governors in seceded states, Stanbery says “he places himself on higher ground than the President, who is simply an executive officer.”[18] There we have an express comment from the highest legal official in the land at that time that the president is an officer.
President Andrew Johnson regularly called himself the “chief executive officer”[19]
Johnson calls the president and vice-president of the former Confederacy officers[20]
Johnson also calls the president and vice-president “officers” in a speech on July 18th, 1868 advocating for a constitutional amendment abolishing the Electoral College[21]
Article 10 of Johnson’s Impeachment proceedings in 1868 refer to him as an officer. “Andrew Johnson, president of the United States…did attempt to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States, and the several branches thereof, to impair and destroy the regard and respect of all the good people of the United States for the Congress and the legislative power thereof, which all officers of the government ought inviolably to preserve and maintain…”[22]
From 1881-86, the Senate again took up the issue of presidential succession, and a litany of senators of both political parties call the president an officer. And as usual, no one said otherwise. Two examples:
Senator Charles W. Jones of Florida, a Democrat, on December 19th, 1881:
What does this show if it shows that they were willing to trust the office of President of the United States for the full term to the second officer in the Government, but they were willing to trust that authority to no one else…they recognized also the important fact that both the Vice-President and President derive their title from the same source; that they were regarded at the time as officers of equal dignity and intelligence.
Senator John Sherman, Republican from Ohio, on January 8th, 1883:
The framers of the Constitution manifestly foreseeing that contingencies might arise when the two officers provided by the Constitution in name might be unable to act by reason of death or inability, gave to Congress the power to designate the officer who must perform executive functions in that contingency.[23]
Lastly, if this all wasn’t enough, we have the following exchange from the congressional debates on Section Three. On May 30th, 1866, after all the language changes to Section Three were completed, the following took place on the senate floor[24]:
Senator Reverdy Johnson: But this amendment does not go far enough. I suppose the framers of the amendment thought it was necessary to provide for such an exigency. I do not see but that any one of these gentlemen may be elected President or Vice President of the United States, and why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation. No man is to be a Senator or Representative or an elector for President or Vice President.
Senator Lot Morrill: Let me call the Senator's attention to the words "or hold any office, civil or military, under the United States."
Senator Johnson. Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am; but I was misled by noticing the specific exclusion in the case of Senators and Representatives. But I submit to the Senate whether it is advisable, whether it is politic, looking to the end which we all seek to accomplish, the true restoration of the Union, a union of hearts as well as a union of hands, that you should exclude the large mass of people from participating in the honors of the Government who will be excluded by this provision.
This exchange makes it clear that the ratifiers of Section Three thought it included the president, and since no one said anything else about this after, presumably the point was made clear to everyone else listening on the Senate floor as well. Why would anyone need to say thing further?
VII. Conclusion
In this case, as Chief Justice Marshall said long ago, a person in government who holds an office is an officer, and a (civil) officer is a person who holds an office. The president’s office is clearly established under Art. 2 §1, and per Marshall’s logic in Maurice, “it seems very difficult to distinguish such a charge or employment from an office, or the person who performs the duties from an officer.” Thus, while the president may not be an “officer of the United States” with respect to all clauses of the Constitution, he certainly is with respect to important Anti-Corruption clauses such as the Emoluments Clause, and the Incompatibility Clause, among others. The case is no different with Section Three.
[1] All of these comments and references to the Convention in general come from Max Farrand’s Records of the Federal Convention.
[2] It is interesting where Farrand chose to put the quotes, however, which were around only the word “officers” rather than entirely around “officers of the United States.” This suggests that at least he did not view the term “officers” any differently from “officers of the United States.”
[3] “From James Madison to Thomas Jefferson, 24 October 1787,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-10-02-0151. [Original source: The Papers of James Madison, vol. 10, 27 May 1787–3 March 1788, ed. Robert A. Rutland, Charles F. Hobson, William M. E. Rachal, and Frederika J. Teute. Chicago: The University of Chicago Press, 1977, pp. 205–220.]
[4] See Annals of Congress, February 14th, 1792, House of Representatives, page 406
[5] See History of Congress in Annals of Congress, page 2257; January 3rd, 1799
[6] See History of Congress in Annals of Congress, page 2270; January 4th, 1799
[7] See History of Congress in Annals of Congress, page 2270; January 4th, 1799
[8] See History of Congress in Annals of Congress, page 2272; January 4th, 1799. Note here too that here Dallas appears to be implicitly arguing that anyone holding an “office” would presumably be an “officer.”
[10] https://press-pubs.uchicago.edu/founders/documents/a2_1_1s22.html citing Jefferson letter to Hay on June 20th, 1807
[13] David P. Currie, "The Constitution in Congress: The Second Congress, 1791--1793," 90 Northwestern
University Law Review 606 (1995).
[14] See Congressional Globe, 39th Congress, 1866, pages 3939-3940
[15] See Senate Report No. 260, 34th Congress. The Judiciary Committee Chair at the time was Senator Andrew P. Butler, Democrat from South Carolina.
[16] See Speech of the Hon. James A. Bayard, Against the Validity of the Test-Oath, U.S. Senate, January 19th, 1864
[17] See Congressional Globe, 39th Congress, 1866, pages 3939-3940
[18] Opinion of Attorney General Stanbery, under the Reconstruction Laws; June 12th, 1867; page 11
[19] See for example: https://millercenter.org/the-presidency/presidential-speeches/march-23-1867-veto-message-regarding-rebel-state-governments
[20] https://millercenter.org/the-presidency/presidential-speeches/september-7-1867-proclamation-restoring-all-rights-rebellion
[21] https://millercenter.org/the-presidency/presidential-speeches/july-18-1868-message-proposing-constitutional-amendments
[23] See Congressional Record – Senate, January 8th, 1883, page 956
[24] The Congressional Globe, May 30th, 1866, 39th Congress, page 2899