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As we approach the Feb. 8 oral arguments at the U.S. Supreme Court relating to whether former President Trump is disqualified from holding the office of the presidency under Section 3 of the 14th Amendment, because of his alleged engagement in insurrection, one contention has emerged as Trump’s greatest legal hope: the argument that Section 3 does not apply to former President Trump because the president is not an “officer of the United States” within the meaning of the Constitution, including Section 3.
If the Supreme Court wants to definitively lift the shadow of Section 3 not just from the 2024 presidential race but also from the Jan. 6, 2025, counting and certification of Electoral College votes, the likely simplest and most definitive way to do so is to adopt the argument that the president is not an “officer of the United States.”
But one relevant fact about that argument has received surprisingly little attention. Justice Antonin Scalia, according to a 2014 concurrence he authored and a short private letter he wrote explaining it, believed that the president was, indeed, an “officer of the United States” for constitutional purposes. In addition, a strong case can also be made that Founding Father Alexander Hamilton likewise believed that the president was “an officer of the United States.”
First, some basics. As various Lawfare writers have explained at greater length many times before, Section 3 does not disqualify all insurrectionists from holding all offices. Rather, it disqualifies a special category of them from holding certain types of federal and state offices. The category of insurrectionists to whom Section 3 applies are those who, prior to engaging in insurrection, took an oath to support the Constitution “as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State.”
The only oath of office that Trump has ever taken was the one he took to become president. So if the president does not count as an “officer of the United States,” Trump is home free. Game over. He is not covered by Section 3, even if he did engage in insurrection. That was the very conclusion that Denver District Judge Sarah B. Wallace reached after a five-day bench trial in October: Yes, Trump had engaged in insurrection, but, no, Section 3 didn’t apply to him. On appeal, the Colorado Supreme Court overturned Wallace’s legal conclusion about Section 3 not applying to presidents and, as a result, ruled that Trump was disqualified.
The two scholars most associated with the contention that the president is not an “officer of the United States” are Seth Barrett Tillman of Maynooth University School of Law and Criminology in Ireland and Josh Blackman of South Texas College of Law. The two have championed that argument in, for example, a 54-page 2021 law review article; a 105-page 2023 law review article (“Part III” of an envisioned 10-part treatise entitled “Offices and Officers of the Constitution”); and a 238-page forthcoming 2024 law review article. They have also argued the point in an amicus curiae (friend of the court) brief to the Supreme Court in Trump v. Anderson, the Colorado case now before the justices.
The professors’ argument that the president is not an “officer of the United States” springs from four clauses in the original Constitution, ratified in 1788. They are—in the order of appearance in the document—the Appointments Clause, the Impeachment Clause, the Commissions Clause, and the Article VI Oaths Clause.
The Appointments Clause is the most important. “The Appointments Clause defined the scope of this phrase in the Constitution,” Tillman and Blackman write in the introductory portion of their amicus brief. Later in their brief, they repeat and flesh out that claim:
The President does not appoint himself under the Appointments Clause
Under the Appointments Clause, the President can appoint “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States ….” [Ellipsis in the brief.] The Appointments Clause defines who are the “Officers of the United States.” ... All of the enumerated positions are appointed. Moreover, these positions must be “established by Law”—that is, created by statute.
So they’re saying that “officers of the United States” must be (a) appointed, not elected, and (b) creatures of statute, not of the Constitution. They also stress that the president “does not appoint himself.” For all these reasons, they conclude, the president cannot count as a constitutional “officer of the United States.”
But their brief omits reference to some potentially consequential words that come right where the first ellipsis appears in the excerpted passage above. Restoring those words, the relevant line from the Appointments Clause says that the president shall appoint “all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law....” (Italics added.)
What do those eight italicized words mean? They’re not crystal clear. But one seemingly straightforward interpretation is that the president appoints the officers of the United States whose method of appointment isn’t “otherwise provided for” in the Constitution. For instance, other provisions of the Constitution define the methods for choosing the president, vice president, speaker of the house, and president pro tempore of the Senate. Under that reading, such officials would be “officers of the United States”—just not officers who need to be appointed by the president. Their appointments are “herein otherwise provided for.”
Tillman and Blackman don’t mention or discuss those eight words—“whose appointments are not herein otherwise provided for”—in their Supreme Court brief. They do, however, discuss them in their Part III article. There, they give those words a most extraordinary reading. They assert that they mean exactly the opposite of what they appear to say:
This sub-clause directs the reader not to scour the remainder of the Constitution for other provisions that provide authority to fill other federal “Officers of the United States” positions—by election or by appointment. ... [R]ather, this language puts the reader on notice that no such constitutional provisions exist beyond the textual bounds of Article II, Section 2 [i.e., the Appointments Clause itself].
Not surprisingly, I’m not the only person to read those eight words to mean the very opposite of what Blackman and Tillman interpret them to mean. Perhaps the most noteworthy among them was Justice Antonin Scalia in 2014. That year, the Supreme Court decided the case of National Labor Relations Board v. Noel Canning. There, the Court unanimously affirmed a challenge to the recess appointments of three NLRB commissioners. Scalia wrote a concurrence, in which Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito joined. In it, Scalia wrote: “Except 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.’” (Italics added.)
Soon after Canning was decided, Tillman and Blackman noticed that Scalia’s sentence appeared to conflict with their own reading of the Appointments Clause. Tillman then actually wrote to Scalia to ask him to explain what he meant by that particular sentence. To both his and Blackman’s amazement, they acknowledge in their article, Scalia wrote back.
Dear Mr. Tillman:
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.
/s/ Antonin Scalia
(Brackets in the original.)
So it appears that Scalia—and perhaps even Roberts, Thomas, and Alito, who joined his concurrence—thought the president was an “officer of the United States” for constitutional purposes.
Tillman and Blackman remained unpersuaded by what Scalia had to say on the subject. In their Part III article, they stress that in 1974—40 years earlier, when Scalia was assistant attorney general, Office of Legal Counsel, in the Justice Department—he’d penned a memorandum that cut the other way. There he’d written that “when the word ‘officer’ is used in the Constitution, it invariably refers to someone other than the President or Vice President.” (Trump cites Scalia’s 1974 memorandum in his Anderson merits brief but omits reference to Scalia’s 2014 Canning concurrence or his letter to Tillman.)
On the other hand, one might think that Justice Scalia’s views, expressed in a formal Supreme Court opinion after the benefit of four additional decades of scholarship and judicial experience, might represent the better encapsulation of his mature views on the subject.
Be that as it may, in their Part III article, Tillman and Blackman offer a second reason for disregarding Scalia’s 2014 views. Given that the eight words at issue speak of “appointments” that are “not otherwise provided for,” the professors ask rhetorically and pointedly: “Did Scalia think the President was ‘appointed’?” They appear to regard the notion as absurd.
It turns out, though, that there is now highly persuasive empirical evidence that at the time the Appointments Clause was drafted and ratified (1787-1788), the words “appointed” and “elected” were used interchangeably. This is one of the conclusions reached in a recent article by James A. Heilpern, a senior fellow at Brigham Young University Law School and Michael T. Worley, a Provo, Utah, attorney. Their study relies on both conventional legal research techniques and “corpus linguistics” research, in which computer searches are performed on databases of documents or congressional records or newspapers to determine how words and phrases were used at a certain time in history. (BYU Law School is one of the nation’s leading centers for legal corpus linguistics research, along with Northern Arizona University.)
Heilpern and Worley reach a number of interesting conclusions, but one is particularly pertinent here. They assert that the semantic distinction Tillman, Blackman, and several others have tried to make between “appointed” and “elected” positions
didn’t exist at the time of the Founding. It’s a linguistic anachronism. The words appear to have been used interchangeably, at least to the extent that an election was considered a mode of appointment.
Heilpern and Worley then give examples. Many examples. They begin with a speech by James Madison in 1787, during the Constitutional Convention, discussing different options for how to select the president: “The option before us then lay between an appointment by Electors chosen by the people — and an immediate appointment by the people.” In other words, Madison regarded both potential forms of presidential election—directly by the people or through an electoral college—to be forms of “appointment.”
Then Heilpern and Worley list other examples. In 1781, for instance, George Washington wrote to a protégé of Alexander Hamilton informing him of the “prospect of ... [his] election” as minister of war for the Continental Congress. Yet, four years later, Washington congratulated a different man on his “appointment” to the same position. He seemed to use the words interchangeably.
Similarly, in 1779, after the Continental Congress chose John Adams to be “Minister Plenipotentiary” to negotiate with Great Britain, Adams dashed off two letters relating to the development. In one, he thanked the president of the Congress for “appointing me”; in the other, he informed a French compte that Congress “did me the honor to elect me” to the post. You get the idea.
Now let’s return to Blackman and Tillman’s rhetorical question: “Did Scalia think the President was ‘appointed’?”
If Heilpern and Worley are right, the answer might be: Yes, and with good reason. Using late 18th-century terminology, the president was appointed. James Madison, George Washington, and John Adams all thought so.
In that vein, I will mention one other notable person who appears to have shared Scalia’s 2014 perspective on the meaning of the eight-word proviso usually omitted from discussions of the Appointments Clause by advocates of the view that presidents are not “officers of the United States.” That would be Alexander Hamilton. In 1788, in The Federalist 67, Hamilton wrote that the Appointments Clause
only provides a mode for appointing such officers, "whose appointments are NOT OTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE ESTABLISHED BY LAW''; of course it cannot extend to the appointments of senators, whose appointments are OTHERWISE PROVIDED FOR in the Constitution, and who are ESTABLISHED BY THE CONSTITUTION, and will not require a future establishment by law. This position will hardly be contested. [Capitalization in the original.]
Although the example Hamilton happened to offer here of an appointment “otherwise provided for” in the Constitution was senators, other obvious examples would be presidents, vice presidents, and the other posts mentioned by Scalia. (Today, whether senators and members of Congress should be considered “officers of the United States” is a separate controversy; many scholars who believe presidents are “officers of the United States” believe, nevertheless, that senators and members of Congress are not. There are multiple reasons, but, in part, it’s because they are chosen from single states rather than by a national body or the president.)
Tillman and Blackman, in their Part III article, acknowledge this passage by Hamilton but express confusion about what Hamilton could have meant. They also—correctly—express puzzlement that Hamilton slightly misstates the constitutional text here: Hamilton writes “not otherwise provided for in the Constitution,” while the constitutional text actually reads “not herein otherwise provided for.” (Hamilton uses that exact same language—“not otherwise provided for in the Constitution”—in Federalist 69 and Federalist 76, too, Heilpern points out to me in an interview.) But Hamilton’s slip, if that’s what it was, suggests that he understood the two formulations to be absolutely equivalent. That would mean that Hamilton read the eight words in question exactly the way Scalia did in 2014. And exactly opposite from the way Blackman and Tillman do.
In sum, the foundation of the Tillman-Blackman theory is a constitutional “definition” of “officer of the United States” in the Appointments Clause that appears to have been rejected by both Alexander Hamilton and Justice Scalia.
Obviously, I’m no scholar and thousands of pages have been written on these issues by people who are. Still, I’ve been reading articles and briefs about Section 3 for about three years now, and this striking fact—that both Justice Scalia and Alexander Hamilton appear to have disagreed with the Blackman-Tillman reading of “officer of the United States”—had eluded me until this month. I just recently stumbled upon it, thanks to passing references in the Heilpern-Worley article.
I thought maybe others—including the current nine justices of the Supreme Court—would be interested in knowing and weighing that fact, too.
Just trying to be a friend of the Court here.