Elected Federal Officials Are Not “Officers of the United States”—as that expression is used in the Constitution

 

Discussions about the scope of the United States Constitution’s and federal statute’s “office”- and “officer”-language have not always focused exclusively on low level functionaries at the office-vs-employee/contractor divide. Sometimes such legal discussion expressly distinguished “officers of the United States,” that is appointed positions, from elected federal functionaries.

Employee’s Compensation Act—Assistant United States Attorney, 31 Op. Att’y Gen. 201, 201–202, 205, 1918 U.S. AG LEXIS 39, 1918 WL 610 (1918) (Gregory, A.G.) (emphases added), <https://tinyurl.com/bdesdrrk>:

         To the President . . . .

        [From] Department of Justice . . . .

Some of the things essential to constitute one an officer in this sense have been settled by judicial decision. Article II, section 2, of the Constitution provides that the President—

“shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”

The Supreme Court has said:

“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.” (United States v. Mouat, 124 U.S. 303, 307.)

 

It may be assumed, therefore, that any person in the service of the Government not appointed by the President, a court, or a head of a department, and not elected, is an employee within the meaning of the act in question.

. . . .

T. W. GREGORY [Attorney General] 

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Seth Barrett Tillman, ‘Elected Federal Officials Are Not “Officers of the United States”—as that expression is used in the Constitution,’ New Reform Club (Nov. 3, 2023, 9:01 AM), <https://reformclub.blogspot.com/2023/11/elected-federal-officials-are-not.html>;