Officers

Abstract

The Constitution speaks of “Officers,” “Officers of the United States,” and “Offices under [the Authority of] the United States.” Some scholars equate “Officers” with Officers of the United States, excluding legislators and thereby rendering the Presidential Succession Act unconstitutional. But “Officers” unmodified includes both legislative officers and Officers of the United States. Other scholars contend that Officers of the United States must be appointed, not elected. But the Constitution makes no distinction between “election” and “appointment.” The view of the President as a popularly accountable figure is also deeply anachronistic. We argue that the categories of Officer of the United States and holder of an Office under the United States are interchangeable and that the Constitution distinguishes Officers of the United States (including the President), who are agents of the sovereign people, from legislators, who are the people’s political representatives, and from legislative officers, who are agents of the legislators. Some consequences of our distinction are that the Presidential Succession Act is constitutional and that the President is subject to the Emoluments Clause and the Fourteenth Amendment Section Three disability. Our analysis also yields a broader theoretical implication: rather than jurifidying politics in order to attenuate political control, the Constitution juridifies administration in order to protect political control. Much of its architecture is geared toward policing subordinates of Congress to keep them in line with congressional will.

Keywords: officer of the United States, Appointments Clause, Incompatibility Clause, Emoluments Clause, Insurrection Clause, impeachment, Succession Clause, President, separation of powers, fiduciary constitutionalism