Robert
Goodloe Harper, in closing for the House Managers in the Blount impeachment,
argued:
Harper’s 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.
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]
Harper’s 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.
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.
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] 2 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.”’).
[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] 2 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.”’).
