Mensch tracht, un 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), <>;

[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), <>. 

[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.”’). 

Monday, December 09, 2019

Tillman’s Posts on Lawfare and in The Atlantic

Seth Barrett Tillman, Reading the Senate Rules of Impeachment Litigation: A Response to Hurd and Wittes, Lawfare: Hard National Security Choices (Dec. 9, 2019, 12:16 PM), <>, <>; 

Josh Blackman & Seth Barrett Tillman, Defining a Theory of “Bribery” for Impeachment, Lawfare: Hard National Security Choices (Dec. 6, 2019, 12:43 PM), <>, <>; 

Seth Barrett Tillman & Josh Blackman, Is Robert Mueller an “Officer of the United States” or an “Employee of the United States”?, Lawfare: Hard National Security Choices (July 23, 2018, 2:50 PM), <>, <>; 

Josh Blackman & Seth Barrett Tillman, The Weird Scenario That Pits President Pelosi Against Citizen Trump in 2020The Atlantic (Nov. 20, 2019, 6:40 AM ET), <>;  

Seth Barrett Tillman, Tillmans Posts on Lawfare and in The Atlantic, New Reform Club (Dec. 9, 2019, 1:03 PM), <>; 

Thursday, December 05, 2019

Extract From My Next Article

Any number of other puzzles also remain. Our modern commentators look back to sources from 1835, 1829, 1824, and 1818—with the 1818 source referring to a prior source for Henry’s speech—American Orator,[1] which I have been unable to locate. What the original source of Henry’s speech was remains unclear. Certainly, the Commons’ Journal is not helpful. Modern commentators also look to Gaston’s 1835 speech. Gaston made the “officer” argument there, but he did not positively assert that that he or anyone else made that argument in the 1809 proceedings. So was that argument actually made in 1809?
And, of course, the chief puzzle remains. What line of reasoning (if any) led the members to reject the motion to vacate Henry’s seat? Was it Henry’s platitudinous (almost extra-legal) argument about religious toleration and freedom of conscience? Or, was it the more legalistic arguments brought by one or more of Henry’s purported supporters relating to the scope of the 1776 North Carolina Constitution’s “office”-language? One commentator affirms that it was both.[2] As he points to no sources, his explanation appears to be no more than a somewhat unsatisfying fudge. There is a third explanation—one not properly developed in the extant literature—to which I now turn.


If the reader has stubbornly persisted in going with the Author thus far, I would ask you to go with me a bit farther still. But here, admittedly, I shift from law and history, to conjecture and hypothesis. Perhaps some future sibyl, who will come after me, will fill in the intellectual gaps where I am unable to see. Is not the quality of the reported debate on the Henry motion—the sophistication, the complexity, and the sheer number of arguments marshalled on each side—all on one day’s notice—more than somewhat surprising? Is it just possible, might not we hope, that the debate was pre-planned and pre-arranged, viz., that Henry was set up? Perhaps the motion and subsequent debate were arranged to provide a public vehicle to debate Article 32 and to create a record towards its amendment, if not its abolition? If a cabal of members were quietly engineering such strategic parliamentary politics for the consumption of the wider demos, is there any reason we should be surprised? And if we were consigned by a trick of fate to similar circumstances, could we aspire to do any more than they did? 

[1] I have checked: Increase Cooke, The American Orator (New Haven: Sydney’s Press, 1811), <>; ibid. 2d ed. (Hartford: Oliver D. Cooke, 1814), <>; ibid. (New Haven: Sydney’s Press, 1819), <>. I have also checked Joshua P. Slack, The American Orator (Trenton, New Jersey: Daniel Fenton, 1815), <>. Henry’s speech does not appear in these sources.
[2] Samuel A’Court Ashe, History of North Carolina [from 1783 to 1925], 2 vols. (Raleigh: Edwards & Broughton Printing Company, 1925), 2:207, <>. 

Seth Barrett Tillman, New Sources on the 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat (posted Nov. 25, 2019) <>.

Brian L. Frye, Podcast, A Religious Test in America?—The Motion to Vacate Jacob Henry’s Legislative Seat, Ipse Dixit (Dec. 4, 2019) (interviewing Tillman), <>. 

Seth Barrett Tillman, Extract From My Next Article, New Reform Club (Dec. 5, 2019, 4:26 AM), <>;