Amarica’s Constitutional Crisis: A Kinda Intellectual History of the Office/Officer Controversy

[I would have said “pseudo-intellectual” but I remembered what Art Buchwald said about offending them.]

Anyway, on a recent Lawfare Podcast (at 1:23:02) a listener asked this question about the Colorado district court’s ruling (now reversed on appeal) on section 3: “How is the Colorado judge’s ruling on Trump’s disqualification based on a plausible reading of the 14^th amendment and any existing precedents? What is the reasoning behind the interpretation?”

I will address this question as I interpret it, which I reformulate as follows:

Where does the idea that the president is not an “officer of the United States” and/or does not hold an “office under the United States” come from? Are there any historical or legal precedents for this idea or did Judge Wallace just conjure it out of thin air?

I begin by repeating a statement I made almost 7 years ago: “To my knowledge, prior to Professor Tillman’s raising the issue in 2009 or so, no one had ever expressly claimed or directly implied the president was excluded [from the Foreign Emoluments Clause]. No president, no member of Congress, no executive branch lawyer, no constitutional scholar. No one.” The same is true of the Incompatibility and Disqualification Clauses which, like the Foreign Emoluments Clause, apply only to “offices under the United States.”

In response, Professor Tillman cited me to examples in which President Washington received gifts that arguably would have violated the Foreign Emoluments Clause if it applied and suggested that this was the equivalent of Washington “implying” that the clause was inapplicable. (See Tillman’s comment of Mar. 17, 2017). However, there are many reasons why Washington might have thought, correctly or incorrectly, that the clause was inapplicable and other possibilities as well (he might not have thought about it at all or he might have decided that for some reason he could not comply with the letter of the clause). Regardless, this is hardly the equivalent of a public assertion that the clause was inapplicable because the president does not hold an “office under the United States.”

As I will discuss in my next post, there is slightly more of a historical pedigree to the argument that the president and vice president are not “officers of the United States” within the technical usage of Article II, an argument that also has a basis in the actual text of that article. But that argument has only minor implications for the presidency and vice presidency (it is more consequential with regard to members of Congress). Until Professor Tilllman first started writing about this issue (around 2008 or so), no one had seriously attempted to suggest that the president and vice president were not “officers of the United States” for general purposes, much less that they were exempt from constitutional provisions applying to “offices under the United States.”

There was, however, one mention of this “issue” (if that is the right word) prior to 2008. Specifically, it appears in an article entitled “Is the Presidential Succession Law Constitutional?,” 48 Stan. L. Rev. 113 (1995-96) by Akhil Reed Amar and Vikram David Amar. (For those who do not know, the Amar brothers are highly regarded legal academics and Professor Akhil Amar, in particular, is one of the most influential constitutional scholars of his time.) The thrust of the article is that it is unconstitutional to put congressional officers, such as the speaker of the House and the president pro tem of the Senate, in the line of presidential succession. One of the points the Amars make is that if a congressional officer were to become acting president, resignation from Congress would be required to avoid “a patent violation of the Incompatibility Clause rule that no sitting Senator or Representative may hold executive or judicial office.” Id. at 118-19. In a footnote, they make the following observation:

A quibbler might try to argue that the President does not, strictly speaking, “hold[ ] . . . Office under the United States,” and is instead a sui generis figure. But Article II provides that the President shall “hold his Office” for a four-year term, . . . prescribes an oath for “the Office of the President of the United States,” . . . and further provides that the President shall be removed from Office on Impeachment . . . and Conviction.” More importantly, the anti-Walpolian spirit underlying the Incompatibility Clause would have barred, for example, President George Washington from simultaneously serving as a Virginia Senator.

Id. at 119 n.34 (citations omitted) (emphasis in original).

I am sure that at the time the Amars gave scant attention to this footnote, which addressed an issue they considered insubstantial. In retrospect, however, the footnote is somewhat odd. It implies that there is at least some basis for a “quibbler” to argue that the president does not hold an “office under the United States” but it does not explain what that basis is, nor does it cite even a single example of someone who had previously quibbled about this issue. Perhaps the Amars were thinking about the closely related question whether the president is an “officer of the United States,” but, if so, they do not mention it.

In essence, the Amars raised an issue (does the Incompatibility Clause apply to the presidency) that no one else had ever raised before and which they considered trivial enough to dispose of without serious analysis in a brief footnote. Little did they know this footnote might become the Chekhov’s gun of American constitutional law. Indeed, I suspect that Professor Tillman, a quibbler extraordinaire if there ever was one, took this footnote as a challenge. See Seth Barrett Tillman, Why Our President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 107, 112 n.14 (2009) (stating, in response to the Amars’ footnote, “[w]hat the Amars call a quibble is, in my view, the very core of the Incompatibility Clause as it was understood in 1787.”).

A few years later a young law professor and Amar protégé (references hereafter are to Akhil Amar unless otherwise noted) briefly touched on the question whether the president and vice president are “officers of the United States:”

Throughout this article, the term “civil officers” will be used as a catch-all including not just federal civil officers but also the President and Vice President. Technically this may be incorrect, as the Constitution distinguishes the President and Vice President from civil officers. Article II, §4 [the Impeachment Clause] does not say “all other civil officers,” after all. The distinction appears to be that the President and Vice President are elected, while civil officers of the United States are commissioned by the President. On the other hand, the Constitution refers repeatedly to the President and Vice President as holding “office.”

Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: Any Analysis of the Law, History, and Practice of Late Impeachments, 6 Tex. Rev. L. & Pol. 13, 19-20 n.17 (2001) (citations omitted).

Note here that Kalt is raising what is essentially a technical or terminological issue regarding the usage of “officer of the United States” in Article II, one that has few if any practical consequences (other than that the president is not required to commission himself or the vice president). He does not suggest the president does not hold an “office under the United States,” which would have many significant consequences, including one of importance to his article—an impeached and convicted president could not be disqualified from holding the presidency again. Kalt notably expresses his view that the Disqualification Clause does not prevent a convicted official from serving in Congress “because the Constitution uses the term ‘office’ exclusively of serving in Congress.” Id. at 19 n.12. He makes no such remarks about the presidency or vice presidency. Had Kalt believed there was any plausible argument that disqualification was inapplicable to the presidency and vice presidency, he would undoubtedly have said so.

After Tillman took up the cause of showing that the Constitution’s “officer/office” language was inapplicable to the president and vice president, he wrote (at least) two articles entirely directed at challenging Amarican scholars. One was directed at Amar himself. See Seth Barrett Tillman, Six Puzzles for Professor Akhil Amar (2013). In this paper he challenges Amar’s views on the Constitution’s “office” and “officer” language in a number of (well, six) respects. Tillman invited Amar to respond but, failing that, suggested that perhaps “one or more of your many colleagues and students, readers and listeners would like to respond to one or more of these challenges.” I don’t know if any of them did, but Professor Michael Ramsey posted some thoughts in response, and I chimed in as well.

Interestingly, Tillman explains in this paper that legislators, presidential electors, and delegates to an Article V convention do not hold “offices” at all (and likewise are not “officers”). See Six Puzzles, at 4-6, 26. This, of course, is precisely why it was necessary to explicitly enumerate members of Congress and presidential electors in section 3, rather than relying on the “catch all” office/officer language.

Tillman’s second piece responded to Professor Josh Chafetz, another former Amar student and protégé (and well known to this blog as an expert on congressional legal matters), who had written an article called Impeachment and Assassination, 95 Minn. L. Rev. 347 (2010). Chafetz’s thesis was that presidential impeachment could be understood (metaphorically, of course) as a form of assassination, which could result in the defendant’s political death and, if disqualification were imposed, could “even be political death without the possibility of resurrection.” Id. at 421. The assumption of this (somewhat overwrought) metaphor was that the presidency was an “Office of honor, Trust or Profit under the United States” within the meaning of the Disqualification Clause. In a footnote Chafetz acknowledges that disqualification does not prevent an impeached, convicted and disqualified officeholder from holding state office or from becoming a member of the House or Senate, but he does not so much as mention Tillman’s theory that the presidency is not itself an office covered by the Disqualification Clause. See id. at 351 n.23.

In one sense this is not surprising because Tillman’s theory was both obscure and completely rejected by the few academics (specifically Professors Calabresi and Prakash) who had bothered to respond to it. Given that Tillman was listed as a reviewer on Chafetz’s article, however, you can’t blame him for being a little irritated that the author did not even think enough of his theory to comment on it. So Tillman wrote an entire article attempting to refute Chafetz. See Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause—A Response to Professor Josh Chafetz’s Impeachment and Assassination, 61 Cleve. St. L. Rev. 285, 286 (2013) (“In this response, it is my purpose to show that Chafetz’s proposed metaphor does not work and, indeed, that inferences drawn from this metaphor lead Chafetz far afield from the Constitution’s original public meaning.”)

My purpose today is not to analyze whether Tillman succeeded at this task, which is fortunate because then I would have to read (re-read?) 70 plus pages consisting largely of footnotes. Suffice to say in this piece Tillman boldly declares that his “new” interpretation of the Constitution’s “office/officer” language will supplant the academic consensus view (which he identifies principally with the Amars and Chafetz, but also with many supporting characters including me). I take it that the quotations around “new” in Tillman’s title mean that he was the first (and at that point only) scholar to advance this interpretation in contemporary times, but that it was not “new” in the sense of being made up out of thin air. For the moment we will just agree with the former point.

If Tillman’s purpose was to provoke a reaction from Chafetz, he failed. Chafetz never responded to Tillman’s article, at least in writing. But Tillman had better luck the following year with yet another Amar protégé, Benjamin Cassady, then a recent graduate of the Yale Law School. Cassady wrote an article in which he directly confronted (and rejected) Tillman’s theory, explaining that “[p]roperly understood, the President and Vice President are officer of/under the United States, and the offices they hold are offices of/under the United States.” Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine:” Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209, 287 (2014).

Unfortunately, in the course of explaining why Tillman was wrong, Cassady gave his theory rather more credit than was merited. Specifically, he stated the following:

         Beginning at the Blount impeachment trial and continuing to present-day academic debates, some eminent thinkers have parsed the Constitution and its history for clues to support ingenious arguments that the two top executives are not officers as the Constitution uses that word.  . .  .

         These propositions deserve a response, because—among the other unconventional results they sanction—they also imply that impeached officials cannot be disqualified from the presidency or vice presidency.

Id. at 291-92.

This passage is problematic for two reasons. First, it suggests a long running school of thought, beginning with the 1799 impeachment trial of Senator Blount, by “eminent thinkers” who believe the president and vice president are not “officers” withing the meaning of the Constitution. This is misleading at best. In reality, there was one eminent thinker, Joseph Story, who in passing made a minor and technical observation about the usage of “officer of the United States” in Article II with respect to the president and vice president and who suggested that this observation might help support or explain the decision the Senate was thought to have made in the Blount case. There was nothing approaching a school of thought to the effect that the president and vice president were not “officers of the United States” in some general sense. There are few examples of anyone so much as commenting on Story’s obscure observation, and to my knowledge none that predated the drafting and ratification of section 3. As we will see in my next post, it is entirely possible that no one involved in the drafting, proposal and ratification of section 3 was even aware of Story’s observation.

Second, Cassady implies that this (non-existent) school of thought held that the president and vice president do not hold “offices under the United States” within the meaning of the Disqualification Clause, meaning that an impeached, convicted and disqualified president would still be eligible to serve as president again, and other clauses that apply to such offices. However, Story never said this (and it seems clear he did not believe it) and there is no record of anyone else, eminent thinker or otherwise, saying it in the Constitution’s first two centuries.

Other than Story, the only “eminent thinkers” identified by Cassady as belonging to this supposed school of thought were Tillman and Kalt. However, in a symposium edition of Quinnipiac Law Review on Cassady’s article (for which I wrote the foreword), Kalt denied being part of this school of thought, noting that the footnote in his 2001 article “briefly presents two sides of the argument in an effort at being precise and complete on a point that is tangential to the article.” Brian C. Kalt, The Application of the Disqualification Clause to Congress: A Response to Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine:” Why the Disqualification Clause Doesn’t (Always) Disqualify, 33 Quinnipiac L. Rev. 7, 26 n.70 (2014). Kalt makes it clear that he (like any good Amarican) tends to agree with Cassady and not Tillman. Id.

Unfortunately, Kalt here makes no distinction between the question whether the president or vice president are technically “officers of the United States” as that term is used in Article II (which is what his prior article, like Story’s observation, addressed), and the question whether they hold offices under the United States for purposes of other constitutional provisions (and/or should be considered officers of the United States in a broader sense). This leaves the impression (perhaps unintentional) that Kalt considers the questions more or less interchangeable.

Regardless, this symposium gave some broader recognition to Tillman’s theory, but he was still pretty much all alone in the academic world. Tillman got a big break in 2016, though, when Professor Will Baude wrote a brief comment about Tillman’s scholarship. See William Baude, Constitutional Officers: A Very Close Reading, JOTWELL (Jul. 28, 2016). (In keeping with the theme of this post, I will note that Baude is a former Amar student and teaching assistant, but may or may not qualify as an Amar “protégé”). Although Baude did not exactly endorse Tillman’s theory, he was complimentary of Tillman’s scholarship regarding the office/officer language in the original Constitution.

Baude has since at least qualified his endorsement of Tillman’s views on the constitutional meaning of “office/officer.” Cf. William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three at 104-112 & n. 399 (Sept. 19, 2023), University of Pennsylvania Law Review, forthcoming. Nevertheless, my impression is that Baude’s positive comments played a major role in mainstreaming Tillman’s scholarship. By no means do Tillman’s views represent those of the majority of constitutional scholars, but they are endorsed by an increasing minority (including now Professor Calabresi, Professor Lash, Professor Lessig, Judge Mukasey, and, of course, Professor Blackman).

So that provides the near term background for the current controversy over whether the office/officer language of section 3 applies to the president. Whatever the merits of Professor Tillman’s scholarship, his tireless advocacy, combined perhaps with the failure of the academic community to take him seriously until it was too late, has resulted in his “new” theory becoming competitive with, though not (yet) overcoming, the old Amarican consensus. But this still leaves the question whether Tillman’s theory is “new” in the sense of being invented out of thin air. We will turn to that in my next post.