Mensch tracht, und Gott lacht

Friday, December 27, 2019

Representative Robert Goodloe Harper: A House Manager at the Blount Impeachment




Robert Goodloe Harper, in closing for the House Managers in the Blount impeachment, argued: 


The first of these clauses which has been relied on, is found in the 2d section of the 2d article of the Constitution, where it is provided, that ‘the President, by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers, and Consuls, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.’ But does it follow, from this, that none are to be considered as officers of the United States, except those whom the President appoints [as argued by the Blount’s attorneys]? So far from it, that the clause expressly speaks of officers who are not to be appointed by the President, and whose appointment is otherwise provided for, by the Constitution itself. The clause, therefore, proves nothing; for, as there are officers who are not appointed by the President, it cannot be inferred, that Senators are not officers, because the President does not appoint them.[1]

Harpers interpretation only works if “established by law” extends to positions authorized by the Constitution. On the other hand, if “shall be established by law”[2] extends only to positions authorized by future statutes, i.e., post ratification federal statutes, in other words, if “shall” here expresses futurity, then persons holding elected positions created by the Constitution are not “officers of the United States” per the Appointments Clause. These two very different readings of the Appointments Clause, Harper’s and the alternative reading, are at the root of much modern confusion involving the Appointments Clause and the Constitution’s “officer of the United States” language.

Another way of thinking about the interpretative problem is this: What is the function of the not herein otherwise provided for language in Article II, Section 2? On Harper’s reading, this phrase tells the reader that the appointment of some officer of the United States positions are “otherwise provided” for in other constitutional provisions. The alternative reading is that this not herein otherwise provided for language is telling the reader precisely the opposite. In other words, Article II, Section 2 is exclusive—no other provisions in the Constitution provide authorization for appointing officers of the United States


Finally, notice that Article II, Section 2 uses the language of “appointment.” But the provisions establishing the primary constitutionally created positions—President, Vice President, Representatives, and Senators—generally eschew “appointment” language, in favor of alternative language. Presidents are “elected” or “chosen” by electors, and the electors “vote by ballot.” Article II. Representatives and Senators are “chosen” by the People and by the state legislatures, respectively. Article I, amended by Amendment XVII. In short, Officers of the United States are appointed; by contrast, constitutionally created positions are elected. The Supreme Court has adopted this position repeatedly.[3]

Now if Harper were correct, if there is no distinction between appointed officers and elected constitutionally created positions, then consider the Sinecure or Ineligibility Clause: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time.” Article I, Section 6, Clause 2 (emphasis added) If Harper were correct, and if a senate seat (after a salary increase) goes vacant, then it would seem the Constitution prohibits a state governor filling the vacancy with a then-serving member of the House. Who believes that? What about the presidency? Imagine if a senator wins in the electoral college, but the House, Senate, and outgoing president are all in the hands of the other party. If after the electoral college votes, the lame duck House, Senate, and president increase the salary of the presidency, then—on Harper’s reading—the incoming president-elect would not be eligible for the presidency. I suggest that it is precisely to avoid such results that the Constitution hardwires the distinction between appointment and election.

In every day language, the presidency is an officer of the United States, but that is not how that language is used in the Appointments Clause and elsewhere in the Constitution of 1787. Associate Justice Joseph Story arrived at this conclusion in his Commentaries on the Constitution (1833).[4] Subsequent commentators are in accord [5], as well as the Supreme Court.[6] 



Seth Barrett Tillman, Representative Robert Goodloe Harper: A House Manager at the Blount Impeachment, New Reform Club (Dec. 27, 2019, 9:05 AM), <https://reformclub.blogspot.com/2019/12/representative-robert-goodloe-harper.html>;




[1] Proceedings on the Impeachment of William Blount, A Senator of the United States from the State of Tennessee, for High Crimes and Misdemeanors 93 (Philadelphia, Joseph Gales, 1799) (available on HeinOnline). 

[2] Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424 (1990) (Kennedy, J.) (“Money may be paid out only through an appropriation made by law; in other words, the payment of money from the Treasury must be authorized by a statute.” (emphasis added)); Akhil Reed Amar, America’s Constitution: A Biography 170 (2006) (stating that “by Law,” as used in the Succession Clause, means “by a statute presumably enacted in advance”); see also Case Comment, Constitutional Law: Apportionment Bills Subject to Governor’s Veto, 50 Minn. L. Rev. 1131, 1132 (1966) (“Where [a] constitution provides that certain items be ‘prescribed by law’ or that passage be ‘by law,’ the full lawmaking process clearly is required—passage by both houses plus the governor’s approval or re-passage in case of veto.”); Harris L. White, Note and Comment, Constitutional Law: Joint Resolutions: Effect upon Statutes, 22 Cornell L.Q. 90, 92 (1936) (same); J. Alexander Fulton, Presidential Inability, 24 Alb. L.J. 286, 286 (1881) (same). 

[3] See United States v. Mouat, 124 U.S. 303, 307 (1888) (Miller, J.) (“Unless a person in the service of the government, therefore, holds his place by virtue of an appointment by the president, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not strictly speaking, an officer of the United States.”); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 497–98 (2010) (Roberts, C.J.) (explaining that “[t]he people do not vote for the ‘Officers of the United States.’ Art. II, § 2, cl. 2. They instead look to the President to guide the ‘assistants or deputies . . . subject to his superintendence.”’ (quoting Hamilton’s Federalist No. 72)). 


[4] Joseph Story, Commentaries on the Constitution of the United States § 791, at 260 (Boston, Hilliard, Gray, and Co. 1833), <http://bit.ly/2RlUwhX>. 

[5] David A. McKnight, The Electoral System of the United States 346 (Philadelphia, J.B. Lippincott & Co. 1878) (“[I]t is obvious that ... the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.”’). 

[6] Burton v. United States, 202 U.S. 344, 369–70 (1906) (Harlan, J.) (“[A]nyone convicted under [the statutory] provision[[] shall be incapable of holding any office of honor, trust, or profit ‘under the government of the United States,’ refers only to offices created by, or existing under the direct authority of, the national government, as organized under the Constitution, and not to offices the appointments to which are made by the states, acting separately, albeit proceeding, in respect of such appointments, under the sanction of that instrument. While the Senate, as a branch of the legislative department, owes its existence to the Constitution, and participates in passing laws that concern the entire country, its members are chosen by state legislatures, and cannot properly be said to hold their places ‘under the government of the United States.”’). 



11 comments:

Alfreed Siang said...

Herbal Penis Enlargement product is 100% guarantee to Enlarge and get a better ERECTION ,
the reason why most people are finding it difficult
to enlarge Penis is because they bedlieve on medical
report, drugs and medical treatment which is not
helpful for Penis Enlargement . Natural roots/herbs are the best remedy which can easily Enlarge your Penis permanently 
Contact Dr Olu via Email : Drolusolutionhome@gmail. com or via WhatsApp : +2348140654426 for Natural root and herbal remedies put together to help you get Enlarge and Erect healthy. 
Thank you. 






















William Annie said...

Greetings to every one that is reading this testimony. I have been rejected by my wife after three (3) years of marriage just because another Man had a spell on her and she left me and the kid to suffer. one day when i was reading through the web, i saw a post on how this spell caster Dr Azuka have help a man to get back her wife and i gave him a reply to his email (dr.azukasolutionhome@gmail.com) and he told me that a man had a spell on my wife and he told me that he will help me and after 24 hours  that i will have my wife back. i believed him and today i am glad to let you all know that this spell caster have the power to bring lovers back. because i am now happy with my wife. Thanks for helping me Dr Azuka..or add him up on whats-app +44 7520 636249

Austin Mike said...
This comment has been removed by a blog administrator.
Osita Ada said...

AFRICAN TRADITIONAL METHODS OF CURING HERPES THAT IS GOING VIRAL!
Most traditional methods of roots and herbs today have been scientifically proven to cure almost all drugs resistant diseases without after effect.
It worked for me years ago when I was depressed with herpes. After trying numerous other methods, It was actually an old Ibo lady who brought to my notice the healing effect of natural medicines. She too was permanently cured from HERPES long time ago through Dr Utu @ "drutuherbalcure@gmail.com" who among few, specialises in African roots and herbs for medicinal cure. Apparently roots and herbs have well been known as effective key treatment for herpes. She introduced me to Dr Utu who till date remain my savior, and he truly cleared my doubt. After taking his medication on the fourth week, I contacted him again who asked me to go for test and I was negative. From then till now I do my normal business no outbreak. I may not be a herbal fan but it definitely worked for me!

Elizabeth Matheus said...
This comment has been removed by a blog administrator.
kramer sandra said...
This comment has been removed by a blog administrator.
William Annie said...
This comment has been removed by a blog administrator.
Amanda Bella said...

I Want To Appreciate Dr.OYAGU for hs great deeds, I Was Diagnosed With type 2 Herpes Virus Last year,And Was Look For Solution To Be Cured Luckily I Saw Testimonies On How Dr.OYAGU Cure Herpes Virus I Decided To Contact Dr.OYAGU I Contacted Him He Prepared A Herbal Medicine Portion And Sent It To Me,I Started The Herbal Medicine For My Health.He Gave Me Step By Step Instructions On How To Apply It, When I Applied It As Instructed, I Was Cured Of This Deadly Herpes Within 2 weeks, I Am Now Herpes Negative.My Brother And Sister I No That There Are So Many People That Have There Same Herpes Virus Please contact Dr OYAGU To Help You Too,And Help Me To Thank Dr.OYAGU For Cure Me, I’m Cured By Dr. OYAGU Herbal Medicine,His Contact Email:oyaguspellcaster@gmail.com

Or Cell Whatsapp Number +2348101755322 thank you .....

MARY MARSHAL said...

I am so Happy to be writing this article in here, i am here to explore blogs forum about the wonderful and most safe cure for HERPES SIMPLEX VIRUS . I was positive to the deadly Virus called HERPES and i lost hope completely because i was rejected even by my closet friends. i searched online to know and inquire about cure for HERPES and i saw Dr EDES testimony online on how he was cured so many persons from Herpes Disease. so i decided to contact the great herbalist because i know that nature has the power to heal everything. i contacted him to know how he can help me and he told me never to worry that he will help me with the natural herbs from God! after 2 days of contacting him, he told me that the cure has been ready and he sent it to me via FEDEX or DHL and it got to me after 4 days! i used the medicine as he instructed me (MORNING and EVENING) and i was cured! its really like a dream but i'm so happy! that's the reason i decided to also add more comment of Him so that more people can be saved just like me! and if you need his help,contact his Email: (dredeshome@gmail.com) you can contact him on whatsapp +2348151937428 BLOG https://dredesherbal.webs.com
He also cure the below listed sickness;
(1) HERPES,
(2) DIABETES,
(3) HIV&AIDS,
(4) URINARY TRACT INFECTION,
(5) HEPATITIS B,
(6) IMPOTENCE,
(7) BARENESS/INFERTILITY
(8) DIARRHEA
(9) ASTHMA...

Unknown said...

HELLO EVERYONE
Dr ILUNAMIEN has really be so wonderful to me i will always testify of his greatness in my life who could have believe Dr ilunamien herbal herbs cured me from my herpes virus which i was having for the past 4 year,i came across Dr. ILUNAMIEN on a page of how to treat virus and i saw a lot of testimony of how great Dr ILUNAMIEN has helped them in there various problems and situations and his mobile numbers were also on each testimony +2348155204816
to contact him, because i needed help to get rid of my herpes virus i wrote him on whats app and told him what i was passing through!dear friends all Dr ILUNAMIEN ask me was not much to make sure am cured from my herpes virus, remember health is wealth, he sent me a herbal remedy for the cure of my herpes virus i was so much happy because after drinking the herbs as i was instructed by him i went to the hospital for checkup to my surprise my herpes result came out negative i will recommend Dr. ILUNAMIEN to anyone who need his help you can also whatsapp him +2348155204816
...Thanks dr..

COMPOSITE CYBER SECURITY SPECIALISTS said...



☑️☑️COMPOSITE CYBER SECURITY SPECIALISTS ☑️☑️

•• Are you Seeking for the Best Legit Professional Hackers online?
Congratulations Your search ends right here with us. •• ⚡️⚡️

☑️☑️For Years Now We have Been helping companies secure there Infrastructures against malicious Attacks, however private individuals have been making use of our services to provide Optimum solutions to their cyber and Hacking related Issues by providing them unlimited Access to their desired informations from their Target such as Phone Hack (Which enables them to monitor their kids/wife/husband/boyfriend/girlfriend, by gaining access to everything they are doing on their phone without their notice), Credit Card Mishaps, Website Hacking, Funds Recoveries And Every Other Cyber Related Issues That has to Do With HACKING.

☑️☑️COMPOSITE CYBER SECURITY SPECIALISTS is a vibrant squad of dedicated online hackers maintaining the highest standards and unparalleled professionalism in every aspect.
We Are One Of The Leading Hack Teams In The United States With So Much Accolades From The Deep Web And IT Companies. ••
••We Offer Varieties Of LEGIT Hacking Services With the Help Of Our Root HackTools, Special HackTools and Our Technical Hacking Strategies Which Surpasses All Other Hackers.

☑️ Below Is A Full List Of Our Services:
▪️ FUNDS RECOVERY ON SCAM INVESTMENTS, BINARY OPTIONS TRADING and ALL TYPES OF SCAMS.
▪️ WEBSITE AND DATABASE HACKING πŸ’»
▪️ CREDIT REPAIR. πŸ’³
▪️ PHONE HACKING & CLONING (giving you πŸ“± Unnoticeable access to everything Happening on the Target’s Phone)
▪️ CLEARING OF CRIMINAL RECORDS ❌
▪️ SOCIAL MEDIA ACCOUNTS HACKING πŸ“±
▪️RECOVERY OF DELETED FILES πŸ“€
▪️LOCATION TRACKING πŸ“Œ
▪️BITCOIN MINING ⛏ And lot More.


☑️We have a team of seasoned PROFESSIONALS under various skillsets when it comes to online hacking services. Our company in fact houses a separate group of specialists who are productively focussed and established authorities in different platforms. They hail from a proven track record and have cracked even the toughest of barriers to intrude and capture all relevant data needed by our Clients. Some Of These Specialist Includes ⭐️ DAWID CZAGAN⭐️ JACK CABLE ⭐️ SEAN MELIA ⭐️ ARNE SWINNEN ⭐️And More. All you Need To do is To Write us a Mail Then We’ll Assign any of These Hackers To You Instantly.

☑️COMPOSITE CYBER SECURITY SPECIALISTS is available for customer care 24/7. Feel Free to Place your Requests.

☑️☑️CONTACT:
••• Email:
composite.cybersecurity@protonmail.com

πŸ”˜2020 © composite cybersecurity specialists
πŸ”˜Want faster service? Contact us!
πŸ”˜All Rights Reserved ®️.