Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses
Seth Barrett Tillman and Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62(4) S. TEX. L. REV. 349–454 (2023);
106 Pages Posted: 12 May 2023 Last revised: 13 Jul 2023
Date Written: April 28, 2023
This Article is the third installment of a planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution. The first installment introduced the series. The second installment identified four approaches to understand the Constitution’s divergent “Office”- and “Officer”-language. This third installment will analyze the phrase “Officers of the United States,” which is used in the Appointments Clause, the Impeachment Clause, the Commissions Clause, and the Oath or Affirmation Clause.
This Article proceeds in six sections. Section I describes our methodology, which includes textualism, original public meaning originalism, original methods originalism, and consideration of historical practices during the founding-era and later-in-time. Section II explains that the phrase “Officers of the United States” is defined by the Appointments Clause. This phrase refers to appointed positions in the Executive and Judicial Branches. Our position here is supported by the drafting history of the Appointments Clause, as well as Supreme Court precedent. Section III turns to the Impeachment Clause, which applies to “civil Officers of the United States.” This latter category refers to non-military appointed positions in the Executive Branch and Judicial Branch. Members of Congress, as well as appointed positions in the Legislative Branch, are not “civil Officers of the United States,” and therefore such positions cannot be impeached.
Section IV considers the Commissions Clause, which requires the President to commission “all the Officers of the United States.” There is a longstanding practice of the President’s commissioning appointed positions in the Executive Branch and Judicial Branch. But there is no evidence the President has ever commissioned an elected official, including himself. Section V analyzes the Oath or Affirmation Clause, which suggests that Senators and Representatives, as well as the President, are not “Officers of the United States.” Finally, Section VI focuses on the Recess Appointments Clause. This provision does not use the phrase “Officers of the United States,” and it is not clear whether recess appointees are “Officers of the United States.”
These eight parts support our position: in the Anglo-American legal tradition, the phrase “Office under the . . .” was, and remains, a commonly-used drafting convention that refers to appointed officers. This phrase does not refer to elected officials.
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