Appointments and Removal - Point of Order

February 13, 2026

The Unitary Executive is Watching You

A few months ago a group of six Democratic members of Congress, including Senator Mark Kelly, released a video reminding members of the military that they have a duty to “refuse illegal orders.” The senators and representatives, each of whom has a military or intelligence background, did not identify any particular orders that should be disobeyed, but it was generally assumed that that they were referring to the Trump administration’s legally questionable Venezuelan boat strikes and possibly also the president’s actual or threatened deployment of regular military and National Guard forces in American cities.

The video was subject to reasonable criticism by non-insane people on the ground that it was pointless at best, as servicemembers are well-trained on their duty to disobey unlawful orders, and at worst disruptive to military cohesion and discipline. Among the less mentally balanced, however, the Democrats were labeled the “seditious six” and accused of a “direct attack on this republic.” The latter category included the commander in chief, who fired off the following social media post on November 20, 2025:

It’s called SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL. Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL. Their words cannot be allowed to stand – We won’t have a Country anymore!!! An example MUST BE SET.

In case this take was too nuanced, President Trump followed up with another post shortly thereafter: “SEDITIOUS BEHAVIOR, punishable by DEATH!”

By incredible coincidence, a few days after Trump declared these opposition lawmakers to be enemies of the state his administration announced that it was reviewing “serious allegations of misconduct” against Senator Kelly in his capacity as a retired naval captain. According to a social media post from the Department of “War” (not its actual name), “a thorough review of these allegations has been initiated to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures.” It then explained:

This matter will be handled in compliance with military law, ensuring due process and impartiality. Further official comments will be limited, to preserve the integrity of the proceedings.

At this point you might be thinking that an investigation launched by the executive branch after the president has already publicly declared the guilt of the target doesn’t exactly scream “due process and impartiality,” but at least we can rely upon the military to conduct the actual investigation in a serious and professional manner, as well as to avoid inflammatory public comment, just as it promised to do. Right?

You poor naive sap. TWENTY-SEVEN minutes after the announcement of the investigation, the secretary of “war” reposted the announcement with his own commentary:

The video made by the “Seditious Six” was despicable, reckless, and false. Encouraging our warriors to ignore the orders of their Commanders undermines every aspect of “good order and discipline.” Their foolish screed sows doubt and confusion — which only puts our warriors in danger.

He went on to explain that the investigation was only of Kelly because he alone of the “seditious six” remained subject to the Uniform Code of Military Justice. He closed by vowing that “Kelly’s conduct brings discredit upon the armed forces and will be addressed appropriately.”

This doesn’t seem all that impartial, to be honest. But wait, you say. That post wasn’t from the official X account of the secretary of “war.” It was from the personal X account of some guy named “Pete Hegseth.” So actually there was no violation of the promise to limit “official comments.” And the fact that Hegseth has a personal opinion about Kelly’s conduct should have no bearing on the “impartiality” and “due process” that Senator/Captain Kelly will receive. Right?

Good point! I jumped the gun in equating Pete Hegseth in his official capacity and Pete Hegseth in his personal capacity. The fact that Hegseth has prejudged Kelly’s guilt in his personal capacity says nothing about whether he can be impartial in his official capacity! Also, war is peace, freedom is slavery, and sycophancy is due process. With thinking like that, you could be the next White House press secretary! (Assuming you meet the physical requirements, of course).

Anyway, the “investigation” was conducted and a few weeks later the secretary, in his official capacity, announced the results. You will be shocked to find out that it did not go well for Kelly. After all that impartiality and due process, Secretary Hegseth (not to be confused with Pete Hegseth the rando with personal opinions) issued a letter of censure to Kelly “for conduct that I have determined to be prejudicial to good order and discipline in the Armed Forces of the United States, conduct which brings discredit upon the same and conduct unbecoming an officer.” In addition to issuing this formal censure, Hegseth stated:

I believe good cause exists to reopen the determination of your retired grade under the provisions of 10 U.S.C. §1370. Accordingly, I will direct the Secretary of the Navy to recommend whether a reduction in grade is appropriate in your case.

After receiving the Secretary of the Navy’s recommendation, I will determine if a reduction is warranted. Any reduction in retired grade would result in a corresponding reduction in retired pay.

The censure letter closes with the observation that “[y]our status as a sitting United States Senator does not exempt you from accountability for conduct that undermines good order and discipline in our Armed Forces.”

Personally, I was on pins and needles waiting to see what the impartial recommendation from the secretary of the navy would be. And what Secretary Hegseth would decide to do about what he had already described on X as “the totality of Captain (for now) Kelly’s reckless misconduct.”

Unfortunately, Kelly short-circuited all this due process by bringing suit in federal court against Secretary Hegseth, as well as the Department of Defense (the actual name of the department Hegseth leads), the secretary of the navy (who I will not name since he has recently had all the publicity he needs), and the Department of the Navy. Kelly asked for a temporary restraining order and preliminary injunction with regard to the administrative proceedings against him, alleging that they, among other things, violated the First Amendment, the Speech or Debate Clause, the separation of powers and his due process rights. The case was assigned to Judge Richard Leon, who in a January 2026 hearing expressed some skepticism about the legal and constitutional basis for the proceedings against Kelly but declined to rule immediately.

The Trump administration then doubled down (another shock). Not content with administrative proceedings against Kelly based on the (highly debatable) legal theory that his status as a retired military officer restricts his First Amendment rights to criticize the government, it sought to criminally indict Kelly and the other Democratic senators and representatives on charges related to the making of the video. It has been reported that the proposed indictments, which have not been made public, charged the defendants with seditious conspiracy. In any event, notwithstanding the (mostly deserved) reputation of grand juries as rubber stamps for the prosecution, on Tuesday, February 10, the federal grand jury to which these charges were presented refused to issue any indictments. (It has been reported that this decision was unanimous).

Two days later (i.e., yesterday) Judge Leon ruled that Kelly was likely to succeed on the merits of his First Amendment claim (therefore rendering it unnecessary to consider the remaining claims) and issued a preliminary injunction in his favor. In a Leonesque opinion filled with too many exclamation marks, the court blasted the government’s actions as textbook retaliation for protected political speech. The court rejected the government’s argument that retired military officers were entitled to reduced First Amendment rights, and it found that argument particularly troubling in the case of a sitting senator. As Leon puts it, “if legislators do not feel free to express their views and the views of their constituents without fear of reprisal by the Executive, our representative system of Government cannot function!” Slip op. at 22 (emphasis in original). The judge closed with the (forlorn) hope that his opinion will enable Secretary Hegseth and his fellow defendants to “more fully appreciate why the Founding Fathers made free speech the first Amendment in the Bill of Rights!” Slip op. at 29 (emphasis in original) (warned you about the exclamation marks).

One point made by the court is noteworthy. It states that “Defendants rest their entire First Amendment defense on the argument that the more limited First Amendment protection for active-duty members of the military extends to a retired naval captain.” Slip op. at 19 (emphasis in original). If this accurately characterizes the government’s position, it suggests that even under the government’s own theory there could not possibly be a constitutional basis for indicting the lawmakers who were not retired military officers. And even as to Kelly himself, the government’s position would not seem to provide a basis for criminal, as opposed to administrative, action. See Slip op. at 23 n.5 (noting that the government does not press an argument that Kelly’s speech falls into an unprotected category like incitement). Continue reading “The Unitary Executive is Watching You”

January 29, 2026January 29, 2026

Justice Barrett, Liquidation, and the Obiter Dicta of the Myers Case

During the December 8, 2025 oral argument in Trump v. Slaughter (involving the constitutionality of for cause limitations on the removal of FTC commissioners), Justice Barrett asked Slaughter’s counsel (Amit Agarwal) a question that is worth further exploration:

JUSTICE BARRETT: Counsel, let me say –let –let’s say, just assume, that I disagree with you about the history. Let’s assume that I think –I’ll –I’ll grant you for this purpose that the Decision of 1789, if you just took it in isolation, may be not as conclusive as Myers thought it was. I’ll just grant that you for purposes of this question. But let’s say that I think the liquidation argument throughout the 19th century shows that by the time of the end of the 19th century up until we get to the ICC and the emergence of what starts to look like the more modern independent agency, that the government has the better of the argument. But let’s say that in 1887, after the ICC and then after the FTC and then after Humphrey’s, when there was more the explosion of independent agencies, that –let’s just assume, again, for this purpose, that at that point, yes, you do have precedents like Humphrey’s. Humphrey’s clearly is –is, you know, a good case for you. Do you still lose if I think as of 1887 it was liquidated, it was settled, but then we did have cases and congressional practices that veered from that unbroken law?

Transcript, at 158-59.

The precise question Barrett is asking is whether a constitutional issue that has been “liquidated” (i.e., resolved by not by original meaning or judicial decision, but by a course of government practice and general acquiescence) at one point in time can ever become “unliquidated” such that the original settlement is no longer binding. Or, presumably, whether it can be “reliquidated” such that there is a new legal settlement that itself becomes binding.

I have no particularly strong views on this question, but the analysis in Professor Baude’s 2019 law review article on this topic is persuasive. See William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 53-59 (2019) (discussing whether liquidation is necessarily permanent). Baude argues that liquidations should be analogized to judicial precedent, which “suggest that in practice, liquidated provisions can be unliquidated or reliquidated.” Id. at 56. Moreover, even scholars who support stricter adherence to liquidations do not claim that they enjoy absolute permanence. Compare id. at 53 (quoting Professor Caleb Nelson as arguing that liquidations were expected to be permanent in the absence of “extraordinary and peculiar circumstances”).

In the context of the Slaughter case, the Court would be setting aside a practice of establishing independent multimember agencies, which has existed at least since the creation of the Interstate Commerce Commission (ICC) in 1887, and overruling a judicial precedent, Humphrey’s Executor v. United States, 295 U.S. 602 (1935), which affirmed the constitutionality of that practice, in favor of a liquidation which occurred over the years between 1789 and 1887. Even if pre-1887 liquidation would have prohibited the establishment of such independent agencies (which we will get to in a minute), this seems rather inconsistent, to put it mildly, with “liquidation’s goal of providing stability by matching meaning to publicly accepted practice.” Baude, 71 Stan. L. Rev. at 56. One might well conclude that such a situation would constitute “extraordinary and peculiar circumstances” to justify disregarding the earlier liquidation. Indeed, Professor Nelson himself seems to think so.

What Was Actually Liquidated?

In my view, however, even more important than Barrett’s explicit question are those raised by her set up. Was there a liquidation of the removal question prior to 1887? If so, when did that liquidation occur? And what was the scope of that liquidation? Continue reading “Justice Barrett, Liquidation, and the Obiter Dicta of the Myers Case”

November 10, 2025November 14, 2025

Lindsey Halligan and the Unitary Executive

Correction: Bannon and Navarro were not pardoned for contempt of Congress. Trump pardoned Bannon before leaving office in 2021, but that pardon did not cover Bannon’s subsequent contempt of Congress. Navarro has not been pardoned at all. Thanks to @fedjudges on X for the correction.

As you may have heard, James Comey, the former FBI director, deputy attorney general, and 1985 graduate of the University of Chicago Law School, has been indicted for lying to Congress. This is a rarely prosecuted crime. To my knowledge only one person this century has been tried and convicted for congressional perjury or false statements (three others have pled guilty). That person is Roger Stone, who was pardoned by President Trump. Only two people this century have been tried and convicted for the related crime of contempt of Congress. Both of them, Steve Bannon and Peter Navarro, were also pardoned by Trump. [see correction] (Navarro currently works in a senior position in the Trump administration). This is not to mention the hundreds of individuals Trump pardoned for offenses (including obstruction of a congressional proceeding) related to the January 6, 2021 attack on the Capitol. For some reason, however, the Trump administration has decided that protecting the integrity of congressional proceedings is very important in Comey’s case.

Comey thinks he knows the reason. He has filed a motion to dismiss the indictment for vindictive and selective prosecution. The government has responded indignantly that there is no evidence that the relevant decisionmaker in the case harbors any animus toward Comey:

To start, the relevant analysis is whether the “prosecutor charging” the offense “harbored vindictive animus.” Here, that prosecutor is the U.S. Attorney. Yet the defendant doesn’t present any evidence that she harbors animus against him. Instead, he says that he doesn’t need any such evidence because his claim “turns on the animus harbored by the official who prompted the prosecution.” And, according to him, that is the President. As discussed below, the President does not harbor vindictive animus against the defendant in the relevant sense. Before reaching that issue, however, the Court should determine whether the defendant has offered sufficient evidence to find that the President displaced the U.S. Attorney as “the ultimate decision-maker” in bringing this prosecution.

United States’ Response in Opposition to Defendant’s Motion to Dismiss Indictment Based on Vindictive and Selective Prosecution at 20, United States v. Comey, No. 1:25-CR-272-MSN (E.D. Va. filed Nov. 3, 2025) (citations omitted) (hereinafter “Government’s Vindictiveness Br.”).

It is noteworthy that the brief does not dispute that the president could displace the U.S. attorney as the ultimate decisionmaker, only that he did so. Thus, in response to Comey’s argument that the relevant vindictive actor is “the head of the Executive Branch” who is the U.S. attorney’s “ultimate supervisor,” the government concedes that this “might be a legitimate” point “if the defendant had evidence that the President ordered his prosecution.” Id. at 22. In support of the contention that the president did not “order” the prosecution, it cites a statement Trump made in response to a reporter’s question on September 25, the day that Comey was indicted:

I can’t tell you what’s going to happen because I don’t know yet. Very professional people, headed up by the Attorney General, [Deputy Attorney General] Todd Blanche and [U.S. Attorney] Lindsey Halligan . . . they’re going to make a determination. I’m not making that determination. I think I’d be allowed to get involved if I want, but I don’t really choose to do so.

Government’s Vindictiveness Br. at 16 (emphasis added).

The government contends that the relevant decisionmaker is Lindsey Halligan, who was appointed as interim U.S. attorney by Attorney General Pam Bondi on September 22, 2025. Three days later Comey was indicted.

According to the government, Halligan made the decision to indict Comey based on her 72 hours (or less) of experience on the job. This may be difficult to believe as a factual matter, but the government suggests that it is the appropriate legal framework with which to evaluate Comey’s allegation of vindictiveness. It points out that under the law “a U.S. Attorney is tasked with deciding what offenses to prosecute in her district.” Government’s Vindictiveness Br. at 17. In making such decisions she enjoys “broad discretion” and her exercise of that discretion is entitled to a presumption of regularity. Id. The implication is that absent an express order or some other direct intervention by the president, the U.S. attorney is expected to exercise independent judgment in making prosecutorial decisions.

The question I have is whether that legal framework is consistent with the unitary executive theory that the administration advances in judicial proceedings and which seems to be favored by a majority of the current Supreme Court. We will turn to that now. Continue reading “Lindsey Halligan and the Unitary Executive”

October 28, 2025

An Outline of Congress’s Interest in the Slaughter Case

Following up on my last post, I think an institutional position for Congress in the Slaughter case would look something like this.

First, the Court can avoid addressing the precedential status of Humphrey’s Executor by holding that courts cannot intervene in a dispute regarding an officer’s purported removal from a multimember commission like the Federal Trade Commission (FTC). The government makes several broad constitutional and statutory arguments against judicial power to provide relief in this case (some of which depend on its view that Slaughter is a presidential subordinate). Brief for Petitioners at 38-47. Whatever the merit of those arguments, there is none to the government’s suggestion that the Court should both reach the substantive question of whether the removal limitation in the FTC Act is constitutional and hold that courts in any event lack the power to grant any relief. If the courts lack the power to grant relief, there is no basis for reaching the merits of Slaughter’s claims. Continue reading “An Outline of Congress’s Interest in the Slaughter Case”

October 2, 2025December 2, 2025

Who Will Represent Congress in Trump v. Slaughter?

As you may have heard, the Supreme Court has granted certiorari in Trump v. Slaughter, a case in which a Federal Trade Commissioner whom President Trump purported to fire has sought reinstatement to her position. The Court directed the parties to brief two questions: (1) Whether the statutory removal protections for members of the Federal Trade Commission violate the separation of powers and, if so, whether Humphrey’s Executor v. United States, 295 U. S. 602 (1935), should be overruled. (2) Whether a federal court may prevent a person’s removal from public office, either through relief at equity or at law.

In the meantime, cases involving Trump’s purported removal of members of other “independent agencies” and various multimember boards are still kicking around in the lower courts. In addition, there is at least one case involving the purported removal of an individual official, the registrar of copyrights at the Library of Congress.

Allowing the president to exercise at-will removal of the members of agencies such as the FTC, the Merit Systems Protection Board, the Consumer Product Safety Commission, the National Labor Relations Board, and (perhaps) the Federal Reserve will dramatically alter the nature of the various statutory schemes in which these bodies were established. Presidential control of these agencies could transform them into arms of the executive branch and allow them to be used for purposes entirely foreign to that intended by Congress.

When the Supreme Court first considered the constitutionality of a restriction on the president’s power of removal, in Myers v. United States, 272 U.S. 52 (1926), Chief Justice Taft reached out to the Senate to see if it wished to designate an amicus to represent its interests and, when that appeared impracticable, appointed a sitting senator “to present the views of the legislative branch of the government.” In more recent years, the Court has declined the suggestion to appoint an amicus specifically to represent the interests of Congress, but in cases where the parties agreed that the removal limitation was unconstitutional it has appointed an amicus to defend the constitutionality of particular statute in question. In one case, Seila Law LLC v. CFPB, 591 U.S. __ (2020), the Bipartisan Legal Advisory Group of the House of Representatives also filed an amicus brief supporting the validity of the removal limitation at issue, noting that “the House has a strong interest in defending the validity of the CFPB Director’s removal protection—and the many similar provisions found throughout the U.S. Code.”

In the Slaughter case there is genuine adversity between the parties regarding the constitutionality of the removal limitation so the Court presumably will not appoint an amicus at all. Moreover, it is unlikely (though not impossible) that either the House or Senate will file amicus briefs in the case due to the difficulty in crafting an institutional position that can survive the political hurdles necessary to authorize the filing of a brief. In the Senate, the brief would need to be approved by the Senate Joint Leadership Group (or by a vote of the Senate itself) and therefore would need bipartisan agreement. In the House, BLAG could approve the brief on a party line vote, but it is unlikely that the Republican majority will want to file anything that might offend the Trump administration. Individual members, of course, can file amicus briefs, but these tend to reflect narrow perspectives and are often filed mostly to make a political statement.

This is unfortunate because the Slaughter case will have ramifications for Congress that go well beyond the particular statute in question or even removal protections in general. Moreover, the parties do not have an incentive to advance some of the congressional interests at stake and, indeed, may not even be aware of them. And Congress itself will not have an opportunity to think about the potential ramifications of the case until it is too late.

One of the more obvious congressional interests at stake is the reliance that Congress has placed on Humphrey’s Executor and its progeny in the 90 years since that case was decided. As the House pointed out in Seila Law:

During that time, Congress has created more than two dozen agencies with explicit for-cause removal protections. The statutes creating those agencies were enacted by twenty different Congresses and signed by twelve Presidents, Republicans and Democrats alike. For-cause removal protections thus reflect an established practice accepted by all three branches and deeply integrated into our governmental structure.

Brief for Amicus Curiae the United States House of Representatives in Support of the Judgment Below at 30, Seila Law (No. 19-7) (citation omitted).

It is not just the for-cause removal protections themselves that will be affected by the Court’s decision, however. Congress also relied upon the validity of these protections in how it structured these agencies and in the powers and duties it assigned to them. Striking down the removal protections while leaving the rest of the statutes intact will in effect enact an entirely new statutory scheme that was never approved by Congress. As was perceptively pointed out in an amicus brief filed by a group of Republican senators, “the CFPB was designed to remain independent from the political branches” and “[s]evering the CFPB Director’s for-cause removal protection from the rest of the Act would therefore create an entirely new system—one that was never legitimized though bicameralism and presentment.” Amicus Brief of U.S. Senators Mike Lee, James Lankford, and M. Michael Rounds Supporting Petitioner at 11, Seila Law (No. 19-7) (emphasis in original). Thus, “a proper respect for congressional authority requires that Congress be allowed to determine, at least in the first instance, how to respond to a holding that any provision of a federal statute is unconstitutional.” Id. at 14.

The Court paid no heed to this admonition in Seila Law, instead concluding with unwarranted confidence that Congress would have preferred a “dependent CFPB” to “no agency at all.” It is not clear how the Court will be able to even make such a cursory judgment regarding dozens of statutes that were enacted (and amended) at different times, all based on an assumption of agency independence that the Court could now upend. Furthermore, these statutes were enacted at times when there were expectations that presidents would not use their powers in ways that even the most enthusiastic supporters of the unitary executive would recognize as improper. See Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 Harv. L. Rev. 1756, 1837 (2023) (“the Constitution implicitly constrains the President’s discretion to exercise constitutional powers, including removal” through, among other things, his oath to faithfully execute the office). It should not be controversial to note that these expectations no longer hold.

Exactly how Congress should respond to this challenge and how it might ask the Court to frame its opinion to preserve congressional authority are matters on which reasonable people may disagree. But it is not a partisan issue or one that necessarily breaks along ideological lines. Crafting an institutional position that could command bipartisan support in Congress may be an impossible task, but we will not know unless someone tries.

August 16, 2025

A Government of Men

“It is the proud boast of our democracy that we have a ‘government of laws and not of men,’” So opens Justice Scalia’s famous dissent in Morrison v. Olson, 487 U.S. 654, 697 (1987), which I happened to be reading recently (as part of a more extensive project on the unitary executive and presidential removal). This post is to address its relevance in the context of a specific recent event, namely the revelation that the Office of Special Counsel (OSC) has opened an investigation into Jack Smith, a former special counsel (though, confusingly, not the kind of special counsel who serves in OSC).

Scalia’s Dissent

Scalia’s dissent may be thought of as having three parts. The first consists of an extensive and vivid dissection of the independent counsel statute, the constitutionality of which was the issue before the Court in Morrison. Briefly stated, Scalia thought the independent counsel statute effectively allowed Congress to compel criminal investigations of high level executive officials and encouraged the overzealous pursuit of criminal charges against such officials by politically unaccountable prosecutors who were likely to be biased against them. This resulted in a fundamental unfairness which institutionalized “the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted.” Morrison, 487 U.S. at 728 (Scalia, J., dissenting) (quoting a speech by Robert Jackson while serving as attorney general). [note: all cites to Morrison hereafter are to Scalia’s dissent].

The second part of Scalia’s dissent consists of his argument that the independent counsel act violated the principle of the unitary executive, which he derived from the first sentence of Article II, that “[t]he executive Power shall be vested in a President of the United States.” This principle requires that all executive power (or at least, as Scalia repeatedly put it, all “purely executive power”) be in the “full control” of the president. There are a number of problematic aspects of this theory, which are the subject of my larger project, but for today we will assume that the theory is correct and that the independent counsel statute, by vesting (purely) executive power in a prosecutor who was largely beyond the direct or indirect control of the president, violated the unitary executive principle.

This brings us to the third part of Scalia’s dissent, which is his attempt to draw a connection between the ills of the independent counsel statute and the constitutional violation. Scalia postulates that presidential control will make less likely that there will be prosecutorial abuse against individuals covered by the law. This is no doubt true since the whole point of the law was, as Scalia notes, to ensure independent investigation “when alleged crimes by [the president] or his close associates are at issue. Morrison, 487 U.S. at 710. Congress feared that prosecutors subject to presidential control would be less likely to vigorously investigate such crimes, and it is a simple logical corollary that they would therefore be less likely to abusively or overzealously investigate them. (By the same token, one could say that federal judges would be less likely to unfairly rule against the president or his friends if he had the power to fire them. Not that I am trying to give anyone ideas.)

But what is Scalia’s basis for suggesting that presidential control of prosecutors will, in general, lead to less prosecutorial abuse? Scalia’s argument requires some reason to believe that presidents are likely, on balance, to restrain rather than encourage such abuse. Otherwise the fact (if it be a fact) that the unitary executive theory requires striking down the independent counsel law is nothing more than a happy coincidence.

Scalia does not explicitly consider the possibility that presidential control could result in overenforcement of criminal law, but he does acknowledge the possibility that presidents will underenforce the law when they or their friends are involved. Morrison, 487 U.S. at 710. He offers this by way of reassurance:

The checks against any branch’s abuse of its exclusive powers are twofold: First, retaliation by one of the other branch’s use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes; and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more “dangerous to the political rights of the Constitution,” Federalist No. 78) who are guilty of abuse. Political pressures produced special prosecutors—for Teapot Dome and for Watergate, for example—long before this statute created the independent counsel.

Morrison, 487 U.S. at 711 (citations omitted).

Whatever the effectiveness of the first set of checks, they seem equally potent with regard to an independent counsel as to a president. An independent counsel could be impeached and removed from office. A case brought by an independent counsel could be dismissed for malicious prosecution like any other case. Moreover, unlike a president, an independent counsel could be removed (by the attorney general) for cause. Thus, these structural checks against abuse by an independent counsel were at least as significant as those against presidential abuse.

As for the second set of checks, it is true that independent counsels did not have to worry about how public opinion would affect their next election. But the same is true of presidents in their second term. Moreover, while presidents are subject to political pressure that can cause them to change course (as the appointment of special prosecutors for Teapot Dome and Watergate illustrate), independent counsels were hardly immune from such pressures. After all, they required funding by Congress and could not survive without political support. An independent counsel facing a backlash from public opinion would likely lose political support far more quickly than a president. There thus appears to be little reason to believe that constitutional structure would make presidential abuse of the prosecutorial function less likely than abuse by an independent counsel. Continue reading “A Government of Men”

March 24, 2024

The Blount Case and Congressional Precedent

Today I want to return to a subject mentioned in a prior post relating to the 1799 impeachment trial of former Senator William Blount for acts committed prior to his expulsion by the Senate. Blount’s offenses, though not directly connected to his service in the Senate, were serious. Blount concocted a scheme to get himself out of financial difficulties by starting a war in which Indians and frontiersmen would attack Spanish Florida and Louisiana for the purpose of transferring those territories to Great Britain. A little light treason, as they might say on Arrested Development.

Nonetheless, Blount’s impeachment was dismissed after the Senate, by a relatively close vote of 14-11, decided that it “ought not to hold jurisdiction of the said impeachment.” The Senate’s deliberations were secret and its order of dismissal did not specify why it had reached this decision. However, the conventional view or interpretation (as I will refer to it herein) is that the Senate was persuaded by Blount’s defense that senators are not “civil officers of the United States” and therefore not subject to impeachment.

This conventional view has been challenged in modern times, most prominently by Professor Buckner Melton, a leading scholar of the Blount case. Professor Melton argues that because there were three different jurisdictional arguments made by Blount’s defense, it cannot be assumed that the Senate acted because of the “officer of the United States” issue:

Given all the possibilities the arguments had raised, the silence of the motion to dismiss as to the specific jurisdictional reasons for the dismissal is crucial. Given that silence, the dismissal cannot be taken clearly to mean that Senators aren’t civil officers or that they aren’t subject to impeachment. It may mean that; it may not. We simply don’t know.

Buckner F. Melton, Jr., Let Me Be Blunt: In Blount, the Senate Never Said that Senators Aren’t Impeachable, 33 Quinnipiac L. Rev. 33, 38 (2014). He argues that “nowhere in the Blount proceedings did the Senate establish any rule or precedent that Senators cannot be impeached.” Id. at 36.

At the outset we should distinguish among three potential reasons why the decision in the Blount case might be important. The first is that as a founding era decision of the Senate, it could shed direct light on the original meaning of the Constitution. See, e.g., Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayer as consistent with the First Amendment in large part based on congressional practice dating back to the First Congress); id. at 790 (“In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress—their actions reveal their intent.”). For this purpose the weight given to the Blount decision might depend not only on the closeness of the vote, but also on who (i.e., framers and/or ratifiers) voted each way.

A second and distinct reason for the Blount case’s potential significance is that signified by the conventional view, namely that the case constitutes an authoritative congressional precedent for the proposition that senators (and by extension members of the House) are not impeachable “civil officers of the United States.” Such precedents are recognized both by the courts and Congress, though it is fair to say that the courts have been ambivalent about the weight to give them. See, e.g., Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. 787, 817-19 (2015) (citing favorable congressional precedent while suggesting that a contrary, but divided, precedent should not be relied upon due to likely political motives underlying it); id. at 824-25, 837-39 (Roberts, C.J., dissenting) (accusing majority of ignoring the controlling congressional precedent); Powell v. McCormack, 395 U.S. 486, 546-47 & n.85 (1969) (casting doubt on the value of congressional precedent, apart from its utility in illuminating the intent of the framers). On the other hand, Congress, the most important constitutional actor with regard to impeachment, tends to take its own precedents rather seriously. And as discussed further below, the Blount case (and the interpretation which followed it) should be understood as a particularly significant type of congressional precedent, one which satisfies the criteria for “constitutional liquidation” (a term which is not as ominous as it sounds).

The third reason why the Blount case may be considered important, and the one which has given the case some attention in recent months, relates to the interpretation of section 3 of the 14^th amendment. As we have discussed previously, the Blount case helps to explain why the framers of section 3 thought it necessary, or at least prudent, to separately enumerate senators and representatives, rather than assuming they would be covered by the general categories of “officer of the United States” and “office . . . under the United States.” It should be noted that the Blount case’s relevance here does not necessarily depend on its precedential status; what matters for the section 3 issue is what the framers of the 14^thamendment thought the Blount case stood for, not whether their view was correct. Even those who question the Blount case’s precedential status, such as Professor Lederman, acknowledge that there was “ongoing debate and uncertainty” at the time of the 14^th amendment’s framing about whether members of Congress were officers of the United States, which could explain the decision to separately enumerate members out of an abundance of caution.

Our subject today, however, is only the second of these three reasons—the precedential status and effect of the Blount case apart from any bearing it might have on original meaning. I will endeavor to show, contra Professors Melton, Lederman and others, that the conventional view of the Blount case is in fact the correct one. Continue reading “The Blount Case and Congressional Precedent”

January 31, 2024February 2, 2024

The Significance of the Election and Appointment Issue (and Professor Tillman’s Request to Participate in Oral Argument)

In my last post I explained why the terms “election” and “appointment,” as used in the original Constitution, should not be read as mutually exclusive. Today I will explain why that matters for Trump v. Anderson, the Colorado disqualification case currently pending before the Supreme Court.

But first I must note a surprising, and somewhat related, development. Professor Tillman has asked the Court for leave to participate in oral argument. I guess this was considered reasonable because the Colorado Supreme Court granted Tillman leave, through his counsel (Professor Blackman), to participate in its oral argument (though ultimately Blackman was unable to do). But still.

In any event, Tillman’s reasons for wanting to participate in oral argument relate in part to the subject of today’s post, as will be explained below.

The primary reason it matters whether elected officials are also “appointed” within the meaning of the Constitution relates to the question whether the president is an “officer of the United States.” The position taken by former president Trump, as well as by Professor Tillman and other amici, is that the term “officer of the United States” is defined (effectively, though not expressly) by Article II to include only those officers who are appointed pursuant to the Appointments Clause. Because section 3 of the 14^th amendment applies only to those who took an oath as “officers of the United States,” they argue, it does not apply to taking an oath as president because the president is not appointed pursuant to the Appointments Clause.

The Appointments Clause provides:

[The president] shall nominate, 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 the Departments.

U.S. const., art. II, § 2, cl. 2 (emphasis added).

On its face the italicized phrase “whose Appointments are not herein otherwise provided for” would seem to show that there is a category of “Officers of the United States” who are not appointed in accordance with the Appointments Clause because their appointments are “herein otherwise provided for.” Or at least that the Appointments Clause is not attempting to define the term “officer of the United States” in, as the Conkling committee put it, the “enlarged and general sense of the Constitution.” In other words, the clause either affirmatively demonstrates that there are “officers of the United States” who are not appointed in accordance with its provisions or indicates that nothing in the clause itself negates the possibility of such officers.

Tillman and Blackman do not accept this reading. If I understand them correctly (and I am not sure I do, despite having read their passages on this several times), they contend that the positions “not herein otherwise provided for” are those offices expressly mentioned earlier in the same sentence, namely ambassadors, other public ministers and consuls, and judges of the Supreme Court. See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachments, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 383-87,442-48 (2023). Put differently, they apparently believe that the framers felt the need– for an unknown reason—to explain what they meant by the word “other” in “all other Officers of the United States.” It is as if I said “I am inviting Fred, George, and some other people to my party, and by that I mean people who are not Fred and George but are in fact additional to Fred and George.” This might be a perfectly normal thing to do if you are writing a Monty Python skit, but it makes no sense as a matter of constitutional drafting.

Roger Parloff puts it somewhat more politely when he says that Tillman and Blackman adopt a reading of the words in question that is “exactly the opposite of what they appear to say.” And James Heilpern and Michael Worley are more polite still when they point out (pp. 27-31) that Tillman and Blackman offer no reason for rejecting the “most natural reading” of the Appointments Clause in favor of an unnaturally narrow construction of the phrase “whose Appointments are not herein otherwise provided for.”

To bolster their case, Tillman and Blackman point to the word “appointments” as evidence that the phrase in question cannot be referring to elected officials such as the president. That is why it is important to understand that the word “appointment” at the time of the framing was a general term that could embrace any process, including election, for filling an office. As Heilpern and Worley put it (p. 30), “[o]nce one understands this linguistic convention, we think the meaning of ‘whose Appointments are not herein otherwise provided for’ is clear and see no reason that it would not include the President.”

In their merits brief, the Colorado respondents argued that Trump’s interpretation of “officer of the United States” fails to account for the “not herein otherwise provided for” language of the Appointments Clause. According to Tillman, Trump failed to address this issue in his merits brief and therefore Tillman should be given oral argument time to offer his explanation of the language. This seems like an odd basis for a request for amicus oral argument, but I support it on the ground of its entertainment value alone. But I should also be given 5 minutes to provide rebuttal in the form of a Monty Python skit.

Tillman also says he should be given oral argument time to explain “his personal correspondence with the late Justice Scalia touching on the issues now before this Court.” I can see the confused look on your face so let me explain.

You may recall that a long ago there was controversy over then-President Obama’s recess appointments, which the Supreme Court declared to be illegal in a 2014 case fondly remembered by readers of this blog. Justice Scalia’s concurrence in that case begins “[e]xcept where the Constitution or a valid federal law provides otherwise, all ‘Officers of the United States’ must be appointed by the President ‘by and with the Advice and Consent of the Senate.’” NLRB v. Noel Canning, 573 U.S. 513, 569 (2014) (Scalia, J., concurring) (emphasis added). Scalia’s reference to a “valid federal law” refers to the portion of the Appointments Clause which permits Congress to vest the appointment of inferior officers in the president alone, in the courts or in the heads of departments. His reference to “the Constitution . . . provid[ing] otherwise” likewise obviously refers to the “not herein otherwise provided for” language of the Appointments Clause and suggests that he agrees with Heilpern and Worley on the “most natural reading” of those words.

Professor Tillman, however, was not happy that Justice Scalia read the language of the Appointments Clause to mean what it obviously says, rather than what Tillman thinks it says. Tillman therefore (I am not making this up) wrote to Scalia to ask him to explain further what he meant by this language. See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachments, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 445 (2023). Scalia sent a note in reply to Tillman (I am still not making this up) as follows:

I meant exactly what I wrote. The manner by which the President and Vice President hold their offices is “provide[d] otherwise” by the Constitution. As is the manner by which the Speaker of the House and the President Pro Tempore of the Senate hold theirs.

Id. at 446.

Now I would be cautious about putting too much weight on this note. A reasonable inference is that Scalia thought all the officials he mentioned are officers of the United States, but it is hard to say how much, if any, consideration he gave to that subject. It is fair to conclude, however, that Scalia rejected the centerpiece of the Tillman/Blackman theory of “officer of the United States” because he did not believe such officers were limited to those appointed in accordance with the Appointments Clause. But this is merely to say that Scalia reads that clause to mean what it says and what his Noel Canning concurrence says that it means.

I am not sure how the Supreme Court will benefit from Tillman’s further elaboration on this “personal correspondence.” But it would be entertaining.

January 29, 2024

Election versus Appointment: The Case of Congressional Officers

There is an excellent article by James Heilpern and Michael Worley which discusses whether the president is an “officer of the United States” within the meaning of section 3 of the 14th amendment. It is worth reading the article and/or a shorter but also very good piece on Lawfare by Roger Parloff discussing the same issues. Today I just want to comment on one of those issues, which is whether the Constitution draws a sharp distinction between “election” and “appointment.”

The elaborate theory constructed by Professors Tillman and Blackman to explain why the president is not an “officer of the United States” and does not (at least under the original Constitution) hold an “office under the United States” is based in significant part on the premise that the president is “elected,” not “appointed.” In today’s parlance this is a familiar distinction, and I have not questioned it in my prior writings on this subject. However, my review of both the federal Constitution and early state constitutions has suggested that the distinction was far less clear cut than Tillman and Blackman seem to believe.

Heilpern and Worley argue that at the time of the framing “the terms appointment and election were truly interchangeable, at least to the extent that an election was one form of appointment.” (p. 25) [note: the way I would put it is that appointment was a broader term than election and that election was one form of appointment]. They lay out an impressive amount of evidence in support of this conclusion at pages 17-26 of their article. I have just a few things to add which tend to reinforce their conclusion.

My focus was mainly on congressional officers. Tillman and Blackman assert that congressional officers are appointed, not elected. At least they say this explicitly about what they call “non-apex” congressional officers such as the clerk of the House and secretary of the Senate. See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part I: An Introduction, 61 S. Tex. L. Rev. 309, 316-17 (2021). I think they also believe that “apex” officers (i.e., the speaker of the House and president pro tempore of the Senate) are also “appointed,” but to my knowledge they do not explicitly say this. If they do not believe this, that would be odd because the Constitution refers to the same process of selection for all congressional officers. See U.S. const., art. I, § 2, cl. 5 (“The House of Representatives shall chuse their Speaker and other Officers”); U.S. const., art. I, § 3, cl. 5 (“The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.”).

In any event, the Constitution does not expressly say that congressional officers are either appointed or elected. Instead, as the above cited provisions indicate, it says that each house should “chuse” its officers. But to choose and to elect are (and were at the time of the framing) synonyms. See Samuel Johnson’s Dictionary (1773) (defining “to elect” as “to choose for any office or use; to take in preference to others”). Moreover, the Constitution uses them as such. For example, members of the House are “chosen every second Year by the People of the several States,” senators were “chosen by the Legislature” of their respective states, and the House shall “chuse by Ballot” a president when no candidate has a majority of electoral votes. Each of these clauses uses a variant of “choose” to describe the conduct of an election. Other constitutional clauses also illustrate this point. See U.S. const., art. I, § 3, cl. 3 (“No Person shall be a Senator who shall not have attained to the Age of thirty Years, and ben nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”) (emphasis added); U.S. const., art. II, § 1, cl. 1 (The president “shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected as follows . . . .”) (emphasis added).

There are other reasons to believe that congressional officers are elected. As viewers of C-SPAN have become well aware during this Congress, the House conducts an “election” to decide who will be its speaker. Other congressional officers, such as the clerk and the sergeant-at-arms are likewise elected by a vote of the House. See Charles W. Johnson, John V. Sullivan & Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents, and Procedures of the House 663-64 (2017) (distinguishing elected House officers, such as the clerk and sergeant-at-arms, from House officers who are appointed but not elected, such as the parliamentarian). Nor is this merely modern terminology, as the first House “proceeded to ballot” for a speaker and clerk, and “Mr. John Beckley was elected” as clerk. I Annals of Congress 100 (Apr. 1, 1789).

Furthermore, it would make little sense to say that congressional officers are not elected when they are chosen in the same manner as other elected officials, most notably senators who were originally chosen by a vote of the state legislature. If there is a reason why the vote of the state legislature to select a senator is an “election,” but the vote of the House or Senate to select officers is not, it escapes me.

Just because congressional officers are elected, however, does not mean it is incorrect to say that they are appointed. Tillman and Blackman conceive of election and appointment as mutually exclusive terms, but I agree with Heilpern and Worley that this is wrong. Presidential electors, for example, are appointed, but the manner of appointment is by an election. As Heilpern and Worley show, even the first presidential election involved states appointing their electors either by popular election or by election of the legislature. (pp. 19-20). Moreover, the Constitution refers to “the Time of chusing the Electors,” thus using the same language that it uses to describe other elections. See U.S. const., art. II, § 1, cl. 4. It was therefore not inconsistent at the time of the framing to refer to congressional officers as both elected and appointed. Indeed, the records of the first Congress reflect this. See I Annals of Congress 100 (referring to the House clerk as both elected and appointed); id. at 242 (same with regard to the House chaplain).

As Heilpern and Worley note (pp. 20-21), the early state constitutions also confirm that the term “appointment” could be used to describe the process of electing officers. Tillman and Blackman apparently believe that only those state officials chosen by direct vote of the people should be considered “elected,” while those chosen by state legislative bodies were “appointed.” See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachments, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 422 (2023). But this terminology conflicts with the usage of state constitutions themselves, where offices filled by the ballot of the legislature could be described as elected, appointed, or both. See, e.g., Md. Const. of 1776, art. XXVIII, XXXII (referring to both election and appointment of the governor); Ga. Const. of 1777, art. XXIV (same); see also William C. Webster, Comparative Study of the State Constitutions of the American Revolution, 9 Annals of the Am. Academy of Pol. & Social Science 64, 80 (May 1897) (“In seven states [the chief executive] was elected by joint ballot of the two houses of the legislature; in Pennsylvania by the joint ballot of the assembly and executive council; in only four by the direct vote of the qualified electors of the state.”). Moreover, it should be noted again that if only direct popular “election” counts, then neither U.S. senators (in the original Constitution) nor the U.S. president/vice president should be considered “elected” either.

For these reasons the terms “appointment” and “election” were not mutually exclusive at the time the Constitution was framed and they should not be read as mutually exclusive as they were used in the Constitution. In my next post I will explain why this conclusion poses a significant problem for the Tillman/Blackman theory.