Baude on Tillman on the Constitution’s Provisions Regarding Officers

One of Justice Scalia’s primary influences on constitutional law and theory has been the growth of originalist textualism – the view that takes close textual readings of the Constitution seriously and draws important consequences for constitutional law from the text rather than someone’s view of what is normatively desirable.  One of the people who has a particular keen interest in such textual differences and their consequences is Seth Barrett Tillman, who has over the last several years sought to closely examine seemingly minor textual variations and to draw significant consequences from them.

In Jotwell, the Journal of Things We Like, Will Baude summarizes and appreciates Seth’s scholarship in this area.  Will explains how Seth has looked at various terms in the Constitution —  “Officer,” “Officers of the United States,” “Officer under the […] United States,” “Public Trust under the United States,” “Offices of Honor/Trust/Profit under the United States,” and “Office under the Authority of the United States.”  Could each of these terms really have distinct meanings?  For many years, even originalist textualists have often assumed the answer is no.

But Seth argues there are important differences between these terms.  Will discusses some of the interpretations and evidence that Seth has used to justify these distinctions.  And he has an extremely useful chart with all six categories and the meanings offered by Seth. 

What are some of the distinctions? Start with the distinction between “Officer” and “Officer of the United States.”  The latter is from the Appointments Clause, which is generally recognized as referring to officers in the executive and judicial branches.  The former is used in the Succession Clause, which provides that when the President and Vice President cannot serve as President, the Congress may by law declare “what officer shall then act as President.”  If “Officer” means the same as “Officer of the United States,” then legislative officers, such as the Speaker of the House, cannot be in the line of succession.  The Amar Brothers have strongly argued for this position.  But Seth claims to the contrary that “Officer” means something broader, including “Officer under the Authority of the United States,” which would allow legislative officer succession.

Another example that Will discusses involves “office under the United States.”  Seth relies on the fact that when Treasury Secretary Alexander Hamilton was instructed in 1792 to report to the Senate “every” person holding “office … under the United States” and their salaries, he attached a list that include “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.”  Seth concludes that this category includes “all positions created, regularized, or defeasible by federal statute including (nonelected) legislative branch positions.”

As this last example suggests, it is not clear that Seth is right about all of these claims.  But Seth has carefully examined the textual and other evidence, and has done more in this area than anyone else.  His work is the place to start, and in many cases, unless you do the research yourself, it will be the place you end.  Read Will’s appreciation and Seth’s work.

Reader Discussion

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on July 29, 2016 at 09:25:18 am

Prof. Rappaport,

It's unclear to me, did Hamilton's accounting of "every” person holding “office … under the United States” also include federal justices and judge; and if so, does their inclusion suggest implications on the separation of powers?

Thank you,

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Paul Binotto
on July 29, 2016 at 19:25:26 pm

According to Seth: Hamilton "included appointed or
administrative personnel in each of the three branches of the federal
government, including the Legislative Branch (e.g., the Secretary of the
Senate and Clerk of the House)." I assume this includes all judges, but it does not say that specifically.

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Mike Rappaport
on July 29, 2016 at 20:35:13 pm

Prof. Rappaport,

Thank you for your response. Very interesting. I would have expected, at a minimum, the Supreme Court Justices would have been excluded from the accounting on pure principle of three independent branches.

I am not an attorney, so I beg your further indulgence this one last time (and forgiveness of my ignorance of the law) when I raise another question. To my understanding, Article III of the Constitution creates the Supreme Court, but seemingly gives Congress the power to organize it. Would the Congressional Republican majority, (assuming it can maintain majorities in 2017), be justified, (ignoring the potential risk of riots in the street and/or reluctance to create harmful precedent), in seeking to re-organize the Supreme Court to eliminate one or more Supreme Court judicial seat, citing as its justification, the desire to avoid, in a deeply divided government and citizenry, not only what is certain to be highly contentious, but potentially an excessively prolonged and deadlocked nomination process to fill Justice Scalia's seat?

Thanks again!

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on July 31, 2016 at 07:33:22 am

Dear Mike -- thank you for your kinds. Seth

I address Paul's question in: Seth Barrett Tillman, Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Northwestern University Law Review 399 (Dec. 2012); 107 Northwestern University Law Review COLLOQUY 1 (April 20, 2012). You can find a copy here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2182078.

At page 414, I quote the Senate's order, which was directed to Hamilton. The Senate order stated:

That the Secretary of the Treasury do lay before the Senate, at the next session of Congress, a statement of the salaries, fees, and emoluments, for one year, ending the first day of October next, to be stated quarterly, of every person holding any civil office or employment under the United States, (except the judges,) together with the actual disbursements and expenses in the discharge of their respective offices and employments for the same period . . . .

You will notice the "except for the judges" language. For that reason, Hamilton did not include the Article III judges and Justices. But he did include clerks of the courts -- which were also appointments in the Judicial Branch. He also included the Secretary of the Senate and Clerk of the House and their staffs -- positions in the Legislative Branch. Of course, he included many Executive Branch positions.

Hamilton's draft did not include: representatives, senators, Vice President, and President.

In short, Hamilton included appointed and non-elected positions in each of the three branches of the federal government, but he did not include any elected or constitutionally mandated positions.


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Seth Tillman
on August 01, 2016 at 10:45:33 am

Dear Prof. Rappaport & Prof. Tillman,

Thank you Prof. Rappaport for the gracious courtesy of referring my question to Prof. Tillman for clarification. And, thank you, Prof. Tillman for graciously providing valuable clarification - Combined, I now have a better understanding of this essay, its underlying pretexts, as well as a glimpse as to the founding member's of U.S. government understanding of the Constitution and of their appreciable sense for delicacy among the separate branches.

Kind regards, Paul

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Paul Binotto

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