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Defining Officers of the United States

In Jennifer Mascott’s new paper, Who are the Officers of the United States?, she argues that the definition of an officer was much broader than the Buckley standard of significant authority pursuant to the laws of the United States and that it included positions with ministerial duties.  I think the evidence that the paper discusses supports this conclusion.

The common definition of office defined it broadly, as Chief Justice Marshall did in 1815, when he wrote it was “ ‘a public charge or employment,’ and he who performs the duties of the office, is an officer.  If employed on the part of the United States, he is an officer of the United States.”  This broad interpretation accorded with many statements, including those by George Mason and Gouverneur Morris that Mascott mentions (and that are referenced in a reader’s comment to my prior post).  Mascott also notes Thomas Bailey’s dictionary included more than 500 references to the term “officer” – and those references to officers “encompassed numerous record-keepers, assistants, and other officials with duties of a menial nature.”

While the fact that the definition is broader than the one Buckley employs is important, the question remains how one draws the line between an officer and a non-officer.  Although today we call the latter category an employee, Mascott notes that the Framers’ generation would not have used the term “employee.”  When they spoke of non-officers, they tended to refer to “servants or attendants.”

Mascott proposes a definition of an officer as one who enforces a statutory duty.  Even assuming this is the correct standard, this standard still requires more precision, because it is unclear what enforcement of a statutory duty is.  One might define that standard broadly to include servants on the theory that they helped implement an agency’s statutory duty and mission.  After all, if they did not, hiring them at all would presumably not be authorized.  How then to draw the line in a way that is faithful to the concepts of the Framers’ generation?

One possibility is that the Framers had a concept of distinguishing between significant and minimal authority, like Buckley’s, but that they drew the line to include as officers many more people who had ministerial duties.  That is certainly a possibility.  Under that view, we would need to know more about how to draw the line, but the positions they included and excluded from the officer category would provide helpful guidance.  Moreover, under that view, modern government workers, such as secretaries and assistants, might be excluded from being officers as not sufficiently exercising authority.

But it is not clear that is the correct way to understand the Framers’ world.  Perhaps they distinguished servants based on social understandings at the time that drew a distinction between a servant and other jobs (such as those filled by gentlemen plus other people lower in the social hierarchy) that informed the concept of an officer.  That social understanding would then be relevant to the constitutional meaning of an officer.

Under this possibility, the hardest part would be applying it to the modern day.  If the social distinction between servants and others no longer apply in our world, then it might be hard to apply it to arguably new positions such as secretaries and assistants, while remaining faithful to the concepts of the Framers world.

Reader Discussion

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on May 05, 2017 at 12:40:18 pm

There is just no way you can have a "minimal authority" means your not an officer standard given the large amount of what the Founders considered officers. Basic bookkeepers, clerks, even people that just watched for incoming boats were considered officers. None of these people had any kind of significant authority.

The standard was given by Chief Justice John Marshal:
(1) if a duty be a continuing one,
(2) which is defined by rules prescribed by the government, and not by contract,
(3) which an individual is appointed by government to perform,
(4) who enters on the duties appertaining to his station, without any contract defining them,
(5) if those duties continue, though the person be changed

That's all that Chief Justice John Marshal said is required to be an officer of the United States. The vast majority of federal employees should be classified as officers (although not independent contractors).

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Devin Watkins
on May 05, 2017 at 18:56:05 pm

Taking that last sentence as accurate - does that mean that we can then impeach or otherwise dismiss any person so situated.

If so, let the process begin!

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gabe
on May 05, 2017 at 20:02:44 pm

While number 1 and 5 seem arguably redundant, and 3 rather ambiguous - by appointment, does he refer to those nominated and confirmed by Executive and Senate, or merely by merit or patronage hiring? In any event, it is inconceivable. (in my view), that the Framers expected, even under the most modest anticipations as to the potentialities, eventualities of the size of the Federal workforce, would deem each to be officer or to be subject to Advice and Consent.

It seems more rational that the Framers could not/did not anticipate a "unionized" federal/public workforce that did not serve at the pleasure of the Executive. But, instead, that they operated under the presumption that stability of agency, (and therefore, government), would be found in a bureaucracy servile (or at least, compliant), to the will and direction of the current executive, as a condition of (continued) employment.

Furthermore, I cannot imagine that the Framers would not be appalled by, or could have foreseen, the indulgence of an unelected collection of petty officials and clerks undermining Executives policy or the Electorates will, as we currently see, without swift reprimand and/or dismissal.

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Paul Binotto
on May 06, 2017 at 11:07:16 am

Bravo, Paul, Bravo!!!!

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gabe
on May 06, 2017 at 15:14:28 pm

Thanks, you are very kind, Mr. Gabe!

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Paul Binotto
on May 06, 2017 at 18:32:11 pm

Mr. Watkins,

Marshall is not the only authority, but I agree his point is significant. Do you think secretaries and janitors are officers? If not, why not? Also, how do you explain the servants and others that the early Congresses did not treat as officers?

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Mike Rappaport
on May 06, 2017 at 19:56:51 pm

1828 Websters Dictionary definition of "officer"

"OF'FICER, n. A person commissioned or authorized to perform any public duty. Officers are civil, military or ecclesiastical. There are GREAT officers of state, and SUBORDINATE officers. Military and naval officers of the same grade usually take rank according to the dates of their commissions. Non-commissioned officers are nominated by their captains, and appointed by the commanding officers of regiments.(CAPS ADDED)

This definition remained unchanged in Websters until the 1913 Edition. Apparently, Webster's agrees with Rappaport.
Lowly or not, a chambermaid may indeed be an *officer*.

Of course, if this means we can remove all these *servants* of the people, let's go for it!

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gabe
on May 06, 2017 at 19:58:57 pm

It's possible that they would be under marshals definition. There is another definition I have seen in founding sources in which an officer is one who deals with the affairs of another. It was understood that the person who tills the land wasn't an officer but the person who oversaw the house was an officer (these were private officers not public officers). A clerk for instance deals with the affairs of another, even if all he does is ministerial. It's possible this might fall under how Marshall distinguishes contract employees from officers, or it might be the "public charge" part of what Marshall mentions.

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Devin Watkins

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