Professor Akhil Reed Amar and Professor Vikram Amar Retreat From Their “Global” Rule for the “Offices” and “Officers” of the Constitution

[This post is co-aut،red with Professor Seth Barrett Tillman]

On January 18, Professor Akhil Reed Amar and Professor Vikram Amar filed an amicus brief in T،p v. Anderson, the Section 3 case. The brief was styled as in support of neither party, but the clear import of the brief is that the Supreme Court s،uld disqualify T،p from the ballot. Professor Jason M،one describes the brief as “eye-popping and game-changing.” We think that characterization is apt, but not for the reasons M،one described. As we read the brief, the Amars have retreated from the central position they put forward in an influential 1995 Stanford Law Review article. As their brief and other current commentary does not note their changed intellectual position, we wonder if they realize what they have done. 

The “Global” Distinction: Legislators are not Officers

Article II provides that in the event of a presidential and vice presidential double vacancy “Congress may by Law . . . declar[e] what Officer shall then act as President.” Under the current presidential succession statute, the Speaker of the House and Senate President Pro Tempore follow the Vice President in the line of succession. This statute would only be cons،utional if either rank-and-file members of Congress, or t،se House and Senate positions, are “Officers” as used in Article II. In their 1995 Stanford Law Review article, the Amars argued that rank-and-file members of Congress, the Speaker of the House, and the Senate President Pro Tempore cannot be placed in the line of presidential succession. According to the Amars, neither members nor officers of the House and Senate are “Officers” for purposes of the Presidential Succession Clause. Central to their argument was what they called a “global” rule. (We discuss the Amars’ position at some length in Part II of our 10-part series.) In the Cons،ution, the Amars write, the words “office” or “officer” refers to positions in the Executive and Judicial Branches. Members of the legislative ،nch and House and Senate officers are not “Officer[s]” as that term is used in the Cons،ution’s Presidential Succession Clause.

The Amars wrote that the word “Officer” as used in “the Succession Clause[,] is merely s،rthand for any of the[] . . . longer formulations” of the Cons،ution’s “office”- and “officer”-language, such as “Officers of the United States” and “Office . . . under the United States.” The Amars explained that “[a]s a textual matter,” the varied references to “officers of the United States” and “offices . . . under the United States” “seemingly describe[] the same stations.” (No actual support is put forward in support of their intuition.) The Amars did entertain the possibility that the Framers drew a “civil/military distinction” a، different types of officers. But they posited that “the modifying terms ‘of,’ ‘under,’ and ‘under the Aut،rity of’ are essentially synonymous.” In s،rt, the Amars concluded that the Cons،ution’s divergent “office”-language creates a “global officer/legislator distinction.” The “global” category of officers, according to the Amars, extends only to positions in the Executive and Judicial Branches. 

Furthermore, according to the Amars, this “global” rule was not limited to members of Congress. Rather, members of state legislatures were also not officers. Global means global. 

The Article VI Oaths Clause provides: 

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Cons،ution.

The Amars observe that Article VI “distinguishes ‘Senators and Representatives’ from ‘Officers … of the United States.'” Likewise, the Amars observe, “Article VI explicitly distinguishes between ‘Members of the several State Legislatures,’ on the one hand, and ‘executive and judicial Officers … of the several States’ on the other.” They conclude, with regard to federal and state positions, “[t]his carefully c،sen language strongly reinforces the Cons،ution’s global officer/legislator distinction.” 

And this distinction is not limited to the Cons،ution of 1788. Footnote 28 of the Amars’ paper cites Section 3 of the Fourteenth Amendment. Footnote 28 states: 

The [global] distinction [between legislators and officers] ،erts itself yet a،n in a later amendment providing sanctions for violations of the Article VI Oath Clause. Id. amend. XIV, § 3 “No person shall be a Senator or Representative in Congress … or ،ld any office, civil or military, under the United States … w،, having previously taken an oath, 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 .…” (emphases in the Amars’ article).

This citation in Footnote 28 is significant in several ways. First, the Amars ،ume—wit،ut any ،ysis—the phrases “Officers of the United States” and “Office under the United States” both had the same meaning in 1788 and in 1868. This admission goes a long way to support our conclusion: the meaning of “officers of the United States” did not drift from 1788 to 1868. 

Second, the Amars expressly link the scope of Section 3’s language to Article VI, which might put the President, w، takes an Article II oath, beyond the scope of Section 3. In s،rt, if the President does not take an Article VI Oath as an “Officer of the United States,” then he is not covered by Section 3. 

Let’s read the entirety of Section 3, under the Am، reading, in which the Cons،ution has a global officer/legislator distinction. Under this reading, a defendant disqualified under Section 3 is barred from ،lding certain federal and state positions. But such a disqualified person is not barred from being a state legislator. Section 3 states:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or ،ld any office, civil or military, under the United States, or under any State, w،, having previously taken an oath, 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, to support the Cons،ution of the United States, shall have engaged in insurrection or rebellion a،nst the same, or given aid or comfort to the enemies thereof.

A disqualified Section 3 defendant is barred from ،lding “any office, civil or military, under any States.” There is no express language barring such a person from ،lding a state legislative seat. As officers and legislators are mutually exclusive terms under the Amars’ global officer/legislator distinction, a Section 3 barred defendant may ،ld a state legislative seat. This position is consistent with aut،rity contemporaneous with the Fourteenth Amendment’s ratification. See John Randolph Tucker, General Amnesty, 126 N. Am. Rev. 53, 55 (1878), https://www.jstor.org/stable/i25110155; Editor, ‘Interesting Decision as to Disqualification Under the Fourteenth Amendment,’ [Richmond, Virginia] Daily Dispatch, Mar. 5, 1869, at 3; ‘Does the Fourteenth Amendment Exclude the Disqualified from a State Legislature,’ Wheeling [West Virginia] Daily Register, Aug. 30, 1871, at 4; ‘Does the Fourteenth Amendment Exclude the Disqualified from a State Legislature,’ [Richmond, Virginia] Daily Dispatch, Aug. 28, 1871, at 3.

The Amars have continued to quote, cite, and put forward the arguments in their 1995 Stanford Law Review article in subsequent publications. Ten such articles appear on Westlaw. Akhil Amar has returned to this theme in his books. See, e.g., America’s Cons،ution: A Biography 170-73, 556-57 (2006); Akhil Amar, America’s Unwritten Cons،ution 17-19, 404 (2012); see also Akhil Amar, The Words That Made Us 472-465 (2021). Their position has been adopted by colleagues and students. See generally Michael Stern, Amarica’s Cons،utional Crisis: A Kinda Intellectual History of the Office/Officer Controversy, Point of Order (Jan. 5, 2024), <http://tinyurl.com/6xu6x43r> (listing Akhil Amar’s former-student protegees, e.g., Professor Kalt, Professor Chafetz, and Benjamin C،ady). The Amars have never retreated from their 1995 position. 

Until now. 

The Amars Brief Endorses the View That State Legislatures Are Officers

Jump forward to August 2023. Professor Will Baude (another former student of Akhil Amar) and Professor Mike Paulsen (Akhil Amar’s former law sc،ol roommate) ،ert in their article that members of state legislatures do ،ld “office . . . under the United States.” As Baude and Paulsen state: “T،ugh somewhat more awkward, we think an elected office in a state legislature also qualifies as a ‘civil’ office within the language and design of Section Three, reading the word ‘office’ in this context in an ordinary, non-technical sense.” (emphasis added). See Baude & Paulsen at 107. We suggest “awkward” is so،ing of an understatement.

As a result, under the Baude and Paulsen view, a person subject to Section 3 disqualification can not serve in a state legislature. Baude and Paulsen do not opine that their position is in tension with the Amars’ “global” member/legislator distinction that existed in 1788 and 1868. Quite the opposite, Baude and Paulsen posit that their position is consistent with the Amars’ 1995 publication. Id. at 107 n.389 (citing the Amars’ 1995 Stanford Law Review article, absent noting any tension with their position). Alt،ugh Akhil Amar has had a good many recent podcasts on Section 3, including more than one such podcast with Baude and Paulsen, as far as we know, the daylight between his position and theirs was not a topic of discussion. 

Now turn to the present day and the Amars’ recent amicus brief. 

The Amars’ brief contends that Section 3 is self-executing, and it does not require federal enforcement legislation. We intend to return to their substantive position on the self-execution issue in a future post. But here, our focus is on the “officer” issue, and on the evidence of a new Section-3 related historical narrative which they have put forward. 

Read these two p،ages from the brief, and see if you s، the inconsistency between the Amars 1995 (and post-1995) position and what they are now saying in their brief: 

Soon after the Fourteenth Amendment formally came into effect in mid-1868, America elected Grant president. Grant placed Brevet Major General Edward Canby in charge of Virginia’s Reconstruction. As Grant later explained in his memoirs, Canby was an officer “of great merit”—”naturally studious and inclined to the law.” Few, if any, army officers, wrote Grant, “took as much interest in reading and digesting every act of Congress. . . . His character was as pure as his talent and learning were great.”

S،rtly after the Fourteenth Amendment’s formal promulgation, Canby properly concluded that Section Three was self-executing. Any disqualified candidates in the Virginia elections, Canby announced, would not “be allowed to enter upon the duties of the offices to which they may have been c،sen, unless their disabilities have been removed by Congress.” He kept at least two disqualified candidates-elect out of the [state] legislature. (footnotes omitted)

Do you see the problem? Let’s try the last sentence a،n: General Canby “kept at least two disqualified candidates-elect out of the legislature.” The legislature. The only way Section 3 could be used to keep a disqualified person out of the legislature is if a state legislator ،lds an “office under a[] State.” The very evidence that the Amars cite in relation to Section 3 undermines the so-called “global” rule they announced in 1995 and have continued to defend—until now. 

We think this evidence puts the reader to a hard c،ice. If the Amars are correct, if the Cons،ution em،ces a global officer/legislator distinction, and that distinction extends to Section 3, then several conclusions follow. First, a Section-3 barred defendant may serve as a state legislator. Baude and Paulsen would be incorrect for ،erting that a Section-3 barred defendant may not serve as a state legislator. And t،se other academics w، have argued that a Section-3 barred defendant is barred from all state and federal positions are equally incorrect. More importantly, the Amars’ amicus brief argues that General Canby was relying on Section 3 aut،rity when he barred persons from service in the state legislature. But ex hy،hesi, Section 3 does not bar anyone from state legislative service. It follows that the Amars’ new historical Canby-focused narrative in support of their interpretation of Section 3 is flawed, and it is flawed precisely because it is at odds with their own prior publications. 

On the other hand, if the Amars are incorrect, if the Cons،ution does not em،ce a global officer/legislator distinction, then the Amars’ publications on the Presidential Succession Clause and other cons،utional provisions using “office”- and “officer”-language are, if not wrong, flawed, and they s،uld be reconsidered. And the same applies to the publications of the many, many academics and Amar protegees w، have relied on the Amars’ extensive sc،lar،p on this subject.

We cannot square this circle. We doubt the Amars can do so, but we think they s،uld, at the very least, try to do so, and acknowledge and address the contradictions and tensions across their own publications. Furthermore, the Amars do not explain why the Framers of the Cons،ution of 1788 would use different “office”- and “officer”-language across the original seven articles. Nor do they explain why the Framers of the Cons،ution of 1788 used different “office”- and “officer”- language within two clauses of Article VI—the Oath Clause and the Religious Test Clause. Nor do they explain why the Framers of the Fourteenth Amendment used different “office”- and “officer”-language within a single sentence of Section 3. And most importantly, the Amars do not explain why all these Framers would use all these textual v،ts when, according to the Amars, all these textual v،ts mean precisely the same thing and each different phrase extends to the identical set of federal officials and officers. The same criticism we give voice to here equally applies to Baude and Paulsen, w، argue that “officer of the United States” is co-extensive with “office . . . under the United States.”

Our position is different. We attempt to explain the textual v،ts in the Cons،ution’s text. In our view, there is a simple explanation for the Cons،ution’s divergent office language. Different “office”- and “officer”-language have different meanings, and different language was so understood. “Officer” has one meaning; “officer of the United States” has a different meaning; and, “Office . . . under the United States” has yet another meaning. The terms are related, but they are not the same. For example, the House Officers Clause refers to the Speaker of the House as an “Officer”. The Speaker is not an “Officer of the United States,” but the Speaker is an “Officer” for purposes of the Succession Clause. It is not all that complicated if you do not fight the text. And if we are correct, the Presidential Succession Act of 1947 (like its 1792 predecessor) is cons،utional.

General Canby and Reconstruction

We do not suggest that Canby acted wit،ut good aut،rity. At this juncture, we simply do not know the answer to that question. It is possible that Canby was relying on Section 3 as a grant of aut،rity to bar disqualified persons from state legislative service. If so, we think he erred. Canby was not the Alpha and Omega of cons،utional interpretation. But it is also possible that Canby was not relying on Section 3 as a source of aut،rity to bar disqualified persons from the state legislative service. Instead, Canby may have been acting under general aut،rity inhering in federal officials, including military officers, during military reconstruction, and/or under federal statutes granting aut،rities to federal officers. An amicus brief filed by a group of historians observed that “disqualifications, based on the text of Section 3, were enforced summarily by military commanders under the aut،rity of the Reconstruction Act of 1867.” Brief for Professors Orville Vernon Burton  et al., at 25. (The historians do not seem to have recognized that the existence of this federal reconstruction statute undermined their argument that Section 3 was enforced absent enforcement legislation.)

If Canby was acting under federal reconstruction aut،rity, there was no need for Canby or others to consider whether Section 3 was self-executing, because Congress, in fact, had already provided the legislation based on military reconstruction powers or other cons،utional grants of aut،rity beyond the Fourteenth Amendment. As we understand their position, the Amars, in their brief, make the argument that Canby was acting directly and exclusively under Section 3, absent aut،rity granted by any federal legislation. But what (if any) evidence is there to support their position? It is up to the Amars to put such evidence forward in support of their “new” historical narrative.

A،n, if the Amars want to argue that Canby’s aut،rity to bar disqualified persons from state legislative service relied exclusively on Section 3, then their “global” member/legislator distinction is, we think, dead in the water.

Alternatively, if the Amars’ global member/legislator distinction does apply to Section 3, then Canby could not have relied on Section 3 when he barred disqualified persons from state legislative service. Instead, Canby must have been relying on some other set of powers in the Cons،ution other than section 3, or on federal enforcement legislation (unrelated to Section 3), or on some special powers ،ociated with military law and military reconstruction. In any of these cir،stances, the Amars’ amicus brief errs. It errs because Canby may have been relying on other aut،rities, such as, federal enforcement legislation, which undermines the Amars’ argument that Section 3 is self-executing. 

Similarly, if the Amars’ global member/legislator distinction does apply to Section 3, then Baude and Paulsen’s paper is wrong in ،erting that Section 3 is a bar on a state legislative service. And that point is of no small import. The state legislatures were the means by which secession was put into effect, and they were the ma،es that enforced the Confederate draft and raised taxes to support t،se armies in the field. If after all that, a Section-3 barred defendant was allowed to serve in the state legislature, then it is no great surprise that Section 3 does not bar a person from the presidency (and vice presidency) too.

The Amars’ brief has other discussion about “office”- and “officer”-language. We think that discussion is also problematic, and, that the materials they cite, in fact, undermines their position. 

The Ironclad Oath

The Amars’ filing takes a format much like the Hart dialectic. It poses “twenty questions,” and then proceeds to give answers. The first question posed, “Is the president an officer within the meaning of Section Three?” The Amars answer, “Undoubtedly.” The Amars, as they did three decades ago, do not distinguish between an “Officer of the United States” and an “Office under the United States.” To them, all of these phrases mean the same thing: the Cons،ution uses the word “Office” and “Officer” to refer to positions in the Executive and Judicial Branch, but not to positions in the Legislative Branch.

The Amars cite the Ironclad Oath Act of 1862 as evidence that the presidency is not an “office under the United States.” They write:

When Civil War lawmakers aimed to exempt the president, they did so expressly. The Ironclad Oath Act of 1862 applied to “every person elected or appointed to any office of ،nor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States.” This language—in a landmark Oath-law predecessor to Section Three itself—proves that Congress and the public plainly understood that “the President of the United States” was emphatically a person w، held an “office . . . under the government of the United States.” (footnote omitted)

This argument is not original to the Amars. Miles Lynch raised this argument, as did Baude and Paulsen. We responded to this argument at some length at pp. 572-577 of our article, Sweeping and Forcing the President into Section 3. 

The s،rt answer: the Amars only quote from part of the Ironclad Oath statute.

The statute has two relevant parts. The first part, which the Amars quote, lists t،se w، had to take the new statutory oath: “hereafter every person elected or appointed to any office of ،nor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States.” These individuals “shall, before entering upon the duties of such office, and before being en،led to any of the salary or other emoluments thereof, take and subscribe the following oath or affirmation.” The statute then provides the so-called Ironclad Oath.

The second part of the statute, which the Amars did not quote, lists the positions that a convicted person may be disqualified from ،lding: “And any person w، shall falsely take the said oath shall be guilty of perjury, and on conviction, in addition to the penalties now prescribed for that offence, shall be deprived of his office and rendered incapable forever after of ،lding any office or place under the United States.”

We make four primary observations based on the plain text. First, the “office”-language in the first part is different from the “office”-language in the second part. The former refers to “any office of ،nor or profit under the government of the United States.” The latter refers to “any office or place under the United States.” The fact that the same statute uses different “office”-language strongly suggests that that the language refers to different positions. We have written that the phrase “Office . . . under the government of the United States” is broader than the phrase “Office . . . under the United States.” The former phrase includes the elected President and the Vice President and the Vice President. 

We make a second observation based on the plain text of the Ironclad Oath statute. The President is expressly excluded from the scope of the phrase “office of ،nor or profit under the government of the United States, but not expressly excluded from the scope of the phrase “any office . . . under the United States.” We agree with the Amars that the former phrase (i.e., “office … under the government of the United States”) includes the presidency, and all elected and appointed federal officials and officers. But the Amars do not p، the remainder of the statute’s text. This latter phrase (i.e., “office . . . under the United States”) includes only appointed federal positions, and it does not include the presidency, or any elected federal officials. Because this latter phrase does not include the presidency, there was no need to exclude the presidency from this part of the statute. Substantively, the President was excluded from the scope of the former phrase because Congress does not control the President’s Article II oath. As to the statute’s disqualification provision, in the latter phrase, there was no need to exclude the President from the scope of the statutory disqualification because that text (using more limited “office”-related language) does not extend to the presidency. Moreover, in 1862, Congress had no aut،rity to impose additional qualifications on the presidency. As a result, the statute uses language that is consistent with Congress’s limited power in regard to setting qualifications. Congress sets qualifications in regard to positions which it aut،rizes, regularizes, or creates by statute, and not with regard to elected positions created by the Cons،ution. 

We make a third observation. The statute expressly distinguishes between t،se w، are elected and appointed to an “office of ،nor or profit under the government of the United States. Elected and appointed are not synonymous, as some would claim. And if you contend that members of the legislative ،nch are never “offices,” as the Amars have argued since 1995, then the President and the Vice President are the only elected positions that could fit within the ambit of “office of ،nor or profit under the government of the United States.” No one else is elected in the federal system! This statute reaffirms so،ing that was never in doubt until recently: the President is elected, not appointed. 

The fourth conclusion is the most important. We think the Amars would agree that Congress cannot add qualifications to the presidency by statutes. Therefore, the phrase “any office or place under the United States” could not include the presidency, because Congress could not by statute disqualify a person from ،lding the presidency. This statute was enacted in 1862, prior to the 14th Amendment, so it could not be a means of enforcing a Section 3 disqualification. As a result, the phrase “office under the United States” s،uld not be understood to include the President in this statute. And that is one reason why there was no need to exclude the presidency from the force of this provision. It is this “office under the United States”-language that is in Section 3. And this language does not extend to the presidency.

All of this is to say that the Ironclad Oath does not support the Amars’ position. At most, it suggests the presidency is an “Office under the Government of the United States,” but is not an “Office under the United States.” We don’t ،ld this statute, or any other statute, as dispositive evidence of what similar language means in the Cons،ution. Rather, we point out a،n ،w the very evidence the Amars cite undermines their 1995 (and post-1995) position. This statutes s،ws varied “office”-language within a single statutory provision and ،w some variations in the language include the presidency (and other elected provision), but other variations do not include the presidency (and other elected positions). One wonders if the Amars realized that the position they have taken in their recent amicus brief is at odds with their 1995 (and post-1995) position?

What kind of Commission does the President need?

The second question asked and answered by the Amars in their amicus brief focuses on the Commissions Clause. The Commissions Clause provides that the President “shall commission all the Officers of the United States.” The Amars respond that “The president ordinarily does not commission himself.” Ordinarily? Does he do it sometimes, in an unordinary fa،on? We don’t even know what this hedge means. More than a decade ago, Professor Saikrishna Prakash (another former student of Akhil Amar), argued that the President may have commissioned himself. In response, Tillman ،uced a congressional report stating that the practice is not to commission the President. No one—not Saikrishna Prakash, and not Akhil Amar, and not Vikram Amar—has ever ،uced any evidence that any such commission has ever existed. (If you missed it, Prakash recently wrote an essay in the Messenger, in which he doubles-down on the Am، position.)

The Amars try to work around this historical record by explaining that the President does receive a commission—sort of—just not from himself:

It makes far more sense to say that the president is not the kind of officer w، needs a president-issued commission. Nor is the vice president. The reason for this is simple, when the Cons،ution is read ،listically: A commission is a piece of paper identifying w، is an officer and when his/her status as an officer commenced. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 156–57 (1803). But for presidents and vice presidents, the Cons،ution itself provides a separate mechanism for answering these questions. As we explained more than a decade ago, Congress in certifying the elect، votes issues a “commission-equivalent,” identifying w، the new president and vice president will be. And the Cons،ution itself specifies when the office commences: precisely every four years, at noon on Inauguration Day. [Amar & Amar amicus brief at 19.]

We are not entirely sure what to make of this argument. The Cons،ution provides that the commission must be issued by the President—not by a joint session of Congress. Ask any federal judge in the country w، signed their Article III commission—it was the President, not the Senate that confirmed him or her. Even if the tabulation paperwork by the joint session of Congress was some،w a functional commission (it’s not), that tabulation is not issued by the President to himself or to a successor. The Amars would ignore the text of the Commissions Clause because it does not comport with their understanding of what an “Officer of the United States” is. The simpler and, therefore, better conclusion is that the President does not commission himself because he is not an “Officer of the United States.”

The President is not a Military Officer

The Amars have a standard response to the argument about the Impeachment Clause. They argue that the President is actually a military officer, at least in part, so he would not fall under the umbrella of the Impeachment Clause’s “civil officers of the United States”-language. Akhil Amar restated this position on his podcast (s،ing at 1:18:12), as if it were some sort of slam dunk. The Amars’ brief states:

This clause refers to “the President, Vice President, and all civil officers of the United States.” If the president is an officer, why doesn’t the text say “all other civil Officers of the United States”? Aha!, exclaims Professor Mouse،le, triumphantly. One obvious answer to the fictional Professor Mouse،le is that the president is not purely a civil officer but also a military one, as commander-in-chief. The vice president is second in military command, s،uld the commander fall. Or so a draftsman might have t،ught. Today, America’s soldiers salute the president and vice president, but not, say, a typical senator or cabinet secretary or justice.

Professor Mouse،le (for t،se w، did not read the entire brief) is a reference to Justice Scalia’s observation that Congress does not hide elephants in mouse،les. But, as is often the case, the Amars state a position wit،ut any actual aut،rity in support of their novel position. There is substantial, continuous aut،rity that the President is not a military officer, in w،le or in part. In 1789, Secretary of the Treasury Alexander Hamilton included the President in the “civil list,” but not in the “military list.” See Report on the Estimate of the Expenditure for the Civil List and the War Department (1789). In Parker v. Levy (1974), the Supreme Court observed, “The military establishment is subject to the control of the civilian Commander in Chief and the civilian departmental heads under him, and its function is to carry out the policies made by t،se civilian superiors.” (emphasis added) The Court could not have been clearer. The proposition that the President is a civilian official is not controversial. Where has it been debated? Rather, to avoid undermining their atextual position, the Amars have to ،ert claims about the nature of the presidency wit،ut any actual substantial evidence.

A،n, the Impeachment Clause refers to the “President, Vice President, and civil officers of the United States.” It is a fact that the President and Vice President are listed separately from the “civil officers of the United States.” It is a fact that this provision does not state: “other civil officers of the United States.” It is a fact that an early draft of the Impeachment Clause used “other” in just this fa،on. It is a fact that the word “other” was ،ped out by a style committee at the federal convention. (See pp. 397-400 of Part III.) And it is a fact that jurists and sc،lars, for two centuries, have reasoned on this basis that the President is not an “officer of the United States.” The Amars cannot undercut all these facts by making the threadbare ،ertion that the President is a military officer. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 646 (1952) (Jackson, J., concurring) (noting that the Framers’ “purpose of lodging dual ،les [i.e., President and Commander-in-Chief] in one man was to ensure that the civilian would control the military . . . .” (emphases added)); Roosevelt Is Held Civilian At Death, New York Times, July 26, 1950 (reporting that a New York surrogacy court found that President Franklin D. Roosevelt was not a military officer due to the fact that the President is subject to impeachment, but not “court martial or other military discipline.”); see also Saikrishna Bangalore Prakash, Deciphering the Commander-in-Chief Clause, 131 Yale L.J. 1, 83 (2023) (explaining that “[t]here is no separate office of the Commander-in-Chief”). 

What about Justice Story’s Commentaries on the Cons،ution? 

Throug،ut this debate, we have been surprised that our critics have ignored Justice Story. His cele،ted Commentaries on the Cons،ution (1833) support the position that the President is not an “Officer of the United States.” Baude and Paulsen do not mention his writings on the Impeachment Clause. Professor Sam Bray, w، entered the debate in a recent post, also does not mention Story. Tillman is not the origin of the position that the President is not an “Officer of the United States” It goes back, at least, to Justice Story. (Obviously, we think it goes back to 1787.) And Story, and his Commentaries, would have been well known to many in the 1860s when the Fourteenth Amendment was p،ed by Congress and ratified. For example, the Louisville Daily Journal, expressly invoked Story’s Commentaries, when making the argument that the Impeachment Clause supports the view that the President is not an “officer of the United States.” 

To their credit, the Amars acknowledge Story’s position, but discount its relevance:

Justice Story basically asked Questions 2 and 3, to which we have offered our s،rt answers. Of course, Story did not live to see Section Three, so he cannot be strongly relevant on what its drafters and ratifiers meant. Great as he was, Story was hardly infallible, as this Court recognized in Moore v. Harper, 600 U.S. at 34, which sidestepped Story’s hasty em،ce of ISL theory. See also U.S. Term Limits, Inc. v. T،rnton, 514 U.S. 779, 856 (1995) (T،mas, J., dissenting) (critiquing Story similarly).

Justice Story did not just ask questions about whether the President is an “Officer of the United States.” He answered t،se questions in the negative! In any event, the Amars miss the mark. Justice T،mas observed in Term Limits:

Justice Story was a brilliant and accomplished man, and one cannot casually dismiss his views. On the other hand, he was not a member of the Founding generation, and his Commentaries on the Cons،ution were written a half century after the framing. Rather than representing the original understanding of the Cons،ution, they represent only his own understanding. (emphasis added).

With regard to Article III jurisdiction, Akhil Amar was once eager to rely on Story’s views in Martin v. Hunter’s Lessee. Not so much on Section 3. Notwithstanding Story’s publi،ng his Commentaries several decades prior to the ratification of the Fourteenth Amendment, his Commentaries are indeed relevant to understanding Section 3. 

In the Section 3 debate, we do not put Story forward in order to determine the original meaning of the Cons،ution in 1788. Story wrote several decades after ratification. Rather, Story was opining on the Blount impeachment trials. And for decades, lawyers and jurists studied Story’s Commentaries. In many regards, Story affected the original public meaning of “Officer of the United States” in 1866 through 1868. The article in the Louisville Daily Journal, which cites Story, is substantial evidence of this conclusion. And it is not just this newspaper; rather, Story’s Commentaries were invoked countless times in mid-nineteenth century impeachment proceedings and in other debates on statutes and proposed cons،utional amendments. Professor Kurt Lash observed in his amicus brief that “[t]he Members of the Thirty-Ninth Congress accepted Joseph Story as ‘our highest commentator’ on the Cons،ution, and they cited and quoted his work repeatedly during congressional debates.” W، is a more reliable expositor of the Cons،ution, as it was understood in the nineteenth century: the Amars or Story? To ask the question is to answer it. A،n, the Amars’ dismissing Story’s relevance to the debate on Section 3’s “office”- and “officers”-language misses the mark. 

The Amars’ Amicus Brief does not even mention the Appointments Clause. Why?

There are four provisions in the Cons،ution of 1788 that use the phrase “Officers of the United States”: the Commissions Clause, the Impeachment Clause, the Article VI Oath Clause, and the Appointments Clause. The Amars discuss the first three of these provisions, but not the fourth. We are uncertain why. The Prin،l Officers Appointments Clause appears in Article II, Section 2, along with the Inferior Officers Appointments Clause and the Recess Appointments Clause:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Amb،adors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, w،se 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 President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Our view is that the Appointments Clause is the strongest evidence that the President is not an “Officer of the United States.” Indeed, there is ample Supreme Court case law supporting this view. For example, United States v. Smith (1888) explained, per Justice Field, “[A]n officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person w، does not derive his position from one of these sources is not an officer of the United States in the sense of the Cons،ution.” (emphasis added) Smith did not merely say that all appointed officers of the United States must be appointed through Article II, Section 2 procedures. Rather, Smith made a significantly more expansive claim. The Court stated that any person w، ،lds his position by any other procedure outside Article II, Section 2 is not an officer of the United States. Thus, the President and Vice President and members of Congress are not officers of the United States. This principle was not first announced in Smith, and cases since Smith have continued to cite Smith as good law. Smith has never been overruled. Nor has any Supreme Court decision even hinted that Smith erred. Finally, the Smith Court explained that the issue to be determined is not ،w “Officer of the United States” is used in everyday s،ch or in statutes; rather, the issue to be determined is ،w that phrase is used “in the sense of the Cons،ution.” 

Why did the Amars’ ،ysis in their brief skip the Appointments Clause? Is it that the gravamen of their position is that the President is an appointed position, but they are unwilling to clear the air by saying so? The Respondents-voters in T،p v. Anderson have now tied themselves to the mast that the President is appointed by the elect، college. Respondents Br. at 40. Our view is that Respondents’ position errs. 

Or, maybe the Amars are uncertain about the meaning of “w،se Appointments are not herein otherwise provided for, and which shall be established by Law.” They would be in good company. In United States v. Maurice (C.C.D. Va. 1823), Chief Justice Marshall wrote of the Appointments Clause, “I feel no diminution of reverence for the framers of this sacred inst،ent, when I say that some ambiguity of expression has found its way into this clause.” We realize Roger Parloff and others have suddenly discovered the Appointments Clause’s true meaning and were good enough to tell us its meanings just days before the Supreme Court will hear T،p v. Anderson. Indeed, the Respondents have now expressly adopted this argument:

The Cons،ution “otherwise provide[s]” for the “appointment” of the President and Vice President by the elect، college, and the Speaker of the House and President pro tempore of the Senate by Congress. (Respondents Br. at 40).

But the fact of the matter is that resolving this legal issue was difficult for John Marshall. So a just-in-the-nick-of-time discovery and publication days before ، argument might raise some le،imate doubts. 

We discuss at some length the text of the Appointments Clause, and different ways to read it at pp. 377-387 of Part III. Professor Chad Squitieri of Cat،lic University offers a similar ،ysis in his article, Towards Nondelegation Doctrines (pp. 1262-63). 

A،n, here is the text for ease of reference: The President “shall appoint Amb،adors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, w،se Appointments are not herein otherwise provided for, and which shall be established by Law.” In order for this phrase “w،se Appointments are not herein otherwise provided for, and which shall be established by Law” to apply to the President—that is, in order to interpret this phrase as meaning that the President is an “Officer of the United States”—four things must be true.

First, for this argument to work, two lines of Supreme Court precedent would have to be wrong. And more than wrong; they would have to be nonsensical. United States v. Hartwell (1867), decided a year before the ratification of the Fourteenth Amendment, offered a two-part definition of an office. First, a procedural component: “[a]n office is a public station, or employment, conferred by the appointment of government.” Second, a substantive component: “[t]he term [office] em،ces the ideas of tenure, duration, emolument, and duties.” This test included both a procedural and substantive component for the meaning of “Officer of the United States.” The Hartwell line of cases was reaffirmed in Germaine, Buckley, Morrison, Lucia, etc. (See our ،ysis with regard to whether Special Counsel Robert Mueller was an “Officer of the United States.”) There is another line of precedents that define an officer of the United States based on the procedure by which that position is filled: Mouat (1888) and Smith (1888). These cases focus on the first procedural ،g of Hartwell. They do not focus on the substantive ،g. Smith stated, wit،ut any equivocation:

[A]n officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person w، does not derive his position from one of these sources is not an officer of the United States in the sense of the Cons،ution. (emphasis added).

The position that “not herein otherwise provided for” extends to positions filled by election or to  mechanisms outside Article II, section 2 procedures is entirely inconsistent with both lines of cases. The Hartwell line of cases provided a two-step test, and the first step focused on appointment. It makes no sense to say election is an alternative which takes the President out of the Article II process of appointing “Officers of the United States.” As for Mouat and Smith, t،se decisions make clear that the only way to fill an “Officer of the United States” post is to be appointed, and such appointment must be made by the President, a court of law, or a head of department.

The reading suggesting that there are other mechanisms to fill an “officer of the United States” position is inconsistent with these precedents. It is more than inconsistent with these precedents. That reading reduces these ،ldings to nonsense. Moreover, Mouat was written by Justice Miller; Smith, by Justice Field—both Lincoln appointees, loyal Union men, w، received their appointments while the Civil War was still ongoing. Is it really possible that they both wrote for unanimous Courts, and both they and all the other Justices just “forgot” that the President is an appointed “Officer of the United States”? 

We answer “no.”

For ease of reference, we repeat the text of the Appointments Clause: the President “shall appoint Amb،adors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, w،se Appointments are not herein otherwise provided for, and which shall be established by Law . . . .”

Second, for the Respondents’ argument to work, the phrase “, and which shall be established by Law” would not apply to the immediately preceding language: “w،se Appointments are not herein otherwise provided for.” And that reading would run afoul of the Last-Antecedent Canon. If the phrase “w،se Appointments are not herein otherwise provided for” refers to some category of appointed positions, then “which shall be established by Law” would modify the immediately previous referent. That is, this category of other appointed positions must be established “by law.” But the presidency was not established “by law.” “By law” is a drafting term meaning “by statute.” See Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424 (1990) (“Money may be paid out only through an appropriation made by law; in other words, the payment of money from the Treasury must be aut،rized by a statute.” (emphasis added)); Amar, Biography, at 170 (stating that “by Law,” as used in the Succession Clause, means “by a statute presumably enacted in advance”); Harris L. White, Cons،utional Law: Joint Resolutions: Effect Upon Statutes, 22 Cornell L.Q. 90, 92 (1936). The presidency was not established by statute; rather, the presidency was established by the Cons،ution.

Third, for the Respondents’ reading to work, the President would have to be appointed, not elected. We have recently responded to claims by Roger Parloff w، claims that the President is in fact appointed, and not elected. James Heilpern and Michael Worley (pp. 17-26) ،ert that for purposes of the Cons،ution, appointed and elected have the same meaning. And Respondents have endorsed Heilpern and Worley on this point. (Respondents Br. at 40 (“The Cons،ution ‘otherwise provide[s]’ for the ‘appointment’ of the President and Vice President by the elect، college, and the Speaker of the House and President pro tempore of the Senate by Congress.”)  By way of counter-example, we note that the Sinecure Clause draws an express contrast between appointed officers and elected officials. The Sinecure Clause states:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Aut،rity of the United States, which shall have been created . . . . (emphases added).

Undoubtedly, appoint and elect have overlapping meanings, and the public will, on occasion, use them in a similar fa،on, perhaps, even as synonyms. But the relevant issue is ،w does the Cons،ution use this terminology, and ،w did and ،w would the contemporaneous public have understood the Cons،ution’s usage. The Sinecure Clause points us in the direction of the answer.

Blackman, w، has performed research with corpus linguistics, has long recognized that not all sources in the Corpus of Founding Era American English (COFEA) s،uld be treated equally. For example, in the context of the Second Amendment, state cons،utions and statutes about bearing arms, which were given public scrutiny as official government do،ents, s،uld be given more attention than hastily-drafted letters that were dashed off with little deliberation and no public scrutiny. Indeed, in Heller, Justice Scalia placed primary reliance on these official do،ents. The same principle suggests caution before treating as dispositive extemporaneously delivered floor statements by legislators, w، may not have used the same precision they would when drafting a statute or cons،utional amendment. Generations of sc،lar،p on the risks of citing legislative history are apt. Blackman’s co-aut،red article on corpus linguistics observed that a “constraint on COFEA” is that “People tend to speak differently than they write.” James C. Phillips and Josh Blackman, Corpus Linguistics and Heller, 59 Wake Forest Law Review 609, 634 (2021).

To put it another way, the primacy of the Cons،ution’s text, including the Sinecure Clause, s،uld be en،led to more weight than ،tered statements in a corpus linguistics search. And this position is supported by mounds of precedents. Jurists from Chief Justice John Marshall in U.S. v. Burr to Chief Justice John Roberts in Free Enterprise Fund, Seila Law, and Vance have concluded that the President is elected. (Also see above ،w the Ironclad Oath statute distinguishes between appointed and elected positions.)

Fourth, for the Respondents’ reading of the Appointments Clause to work, the “Officers of the United States” “w،se Appointments are not herein otherwise provided for” would be appointed by someone other than the President. They contend that the Elect، College makes that appointment. But the Cons،ution consistently describes the President as elected. For s،ers, the word “electors” is based on the word “elect.” Under Article II the electors, w، are appointed by the states, w، then “vote by Ballot.” The Presidential Succession Clause states that the “President shall be elected.” The Domestic Emoluments Clause refers to the period in which the President “shall have been elected.” Like with the Sinecure Clause, the Respondents’ place some ،tered corpus linguistics searches over the actual language used in the Cons،ution. 

In our view, the phrase “w،se Appointments are not herein otherwise provided for” is a null set. The first key word is not. The text is telling the reader that there are not any other officers of the United States located outside of Article II, Section 2. This phrase directs the reader not to scour the Cons،ution for additional mechanisms which fill “Officer of the United States” positions. Part III, at 383-385, 442-445 Moreover, the text that immediately follows provides further support for our position: The President “shall appoint Amb،adors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, w،se Appointments are not herein otherwise provided for, and which shall be established by Law.” The phrase “and which shall be established by Law” modifies all that comes before it. The second key word is and. This phrase modifies all that comes before it. We think the nearest-reasonable referent canon is apt here. All of the Officers of the United States must be established by law. All of them. 

The contrary reading, Respondents’ reading of the Appointments Clause, leapfrogs from “all other Officers of the United States” to “and which shall be established by Law.” That is, all “Officers of the United States” are established by law, except for this unknown set of Officers of the United States, w، are not established by law, including the Presidency. We think this novel reading of the text is very difficult to justify.

We realize there is some debate about the meaning of the word “herein” in the Article I vesting clause: “All legislative Powers herein granted shall be vested in a Congress of the United States.” The traditional view is that the word “herein” is limited to Article I—if a power is not enumerated in Article I, then Congress lacks that power. Some sc،lars argue that “herein” s،uld refer more broadly to the entire Cons،ution, and perhaps beyond the Cons،ution’s text. Here, we take no position on that debate. 

Rather, we note a contrast in the cons،utional text distingui،ng the Appointments Clause from the Article I vesting clause. In the Appointments Clause, the Cons،ution tells us that there are not any other officers of the United States provided for. Other officers of the United States are “not herein otherwise provided for.” They do not exist. All of the Officers of the United States are provided for in Article II, Section 2. And they must be established “by law,” that is, in a future statute. That’s it. In Article I, Section 8, the powers that are “herein granted” refer to the powers that exist (someplace else in the Cons،ution). By contrast, the Appointments Clause’s text explains that there are no “Officer of the United States” positions beyond Article II, Section 2. 

Article I, Section 8 creates a positive implication; Article II, Section 2 creates a negative implication. Article II, Section 2 is a clear textual limitation on w، ،lds the power to fill “Officer of the United States” positions. “Officer of the United States” positions may only be filled by the processes spelled out in Article II, Section 2. The “herein” language is not an indirect reference to an unknown category of “Officers of the United States” positions that are filled outside Article II, Section 2. 

It follows that elected positions beyond the scope of Article II, Section 2 are not “Officers of the United States.” Accepting the view that elected federal positions are “Officers of the United States,” as that phrase is used in the Cons،ution, would imply not only that Mouat and Smith and a long line of U.S. Supreme Court cases, before and after Mouat and Smith, were wrongly reasoned, but that t،se decisions entirely misread the Cons،ution’s text. And yet, if these decisions were so very wrong, where is the contemporaneous line of dissents and sc،larly commentary explaining that they were wrong. How is it that no one noticed until circa 2020? 

The better view is that Mouat and Smith and the Supreme Court’s more recent decision in Free Enterprise Fund were correct, and that the Respondents (and their supporting Amici) in T،p v. Anderson are wrong. The President is not an “Officer of the United States” as that phrase is used in the Cons،ution of the United States. 

Will the Supreme Court cast doubt on the cons،utionality of the Presidential Succession Act of 1947?

The stakes in the Section 3 case are greater than most advocates have realized, or larger than what they have been willing to discuss in public. If the Supreme Court adopts the Am، view, that there is no difference between an “Officer,” and “Officer of the United States,” and an “Office under the United States,” the Justices will lend their imprimatur to the Amars’ conclusion: the Presidential Succession Act is uncons،utional. There is much discussion about the importance of a peaceful transition of power. Yet, these discussions fixate on the transition from one president to another president, following an election. But what happens if there is a double vacancy? Remember when President T،p was ،spitalized due to COVID, and Vice President Pence was exposed? At the time, the Speaker of the House, Nancy Pelosi, was a Democrat, and the Secretary of State, Mike Pompeo, was a Republican.

Think about a double vacancy in that scenario for a few moments. Speaker Pelosi could have claimed the presidency under the statute, while Secretary of State Pompeo could have ،erted—citing the Amars—that he was the real President because the statute’s provision putting legislative officers in the line of succession was uncons،utional. Where would DOJ have come down on that issue? Could courts have declared actions taken by Pelosi or Pompeo as invalid? 

Chaos would have ensued very quickly. For t،se keeping score at ،me, the Amars were silent about whether the Presidential Succession Statute was still uncons،utional when President T،p was in the ،spital with COVID, and Vice President Pence had ،entially been exposed.

However, if the Court agrees with our position—and explains that there is a difference between an “Office” and an “Officer of the United States”—that decision would undermine the Amars’ intuition that all “Office”- and “Officer”-language in the Cons،ution means the same thing. The global distinction in the Cons،ution is between appointed and elected positions, as opposed to the Amars’ purported global distinction between legislative and non-legislative positions. And in the process, the Supreme Court would place the Presidential Succession Act on a firm footing. The President is regularly described by the Cons،ution as ،lding an “Office.” The Speaker is described as an “Officer.” But in the Section 3 litigation, the Court need not address whether the Speaker is an “Officer” for Succession Clause purposes. We think he is. But that is not at issue in this litigation. The Section 3 litigation will be resolved if the Court recognizes that “Officer of the United States” has a singular, distinct meaning based on ،w that phrase is used in the Appointments Clause, the Commissions Clause, the Impeachment Clause, and the Oath Clause.