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02/19/2013

Seth Barrett Tillman: Six Puzzles for Professor Akhil Amar
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted Six Puzzles for Professor Akhil Amar: The Puzzles on SSRN.  From the abstract:

 The Constitution of 1787 uses a variety of language in regard to "office" and "officer."

It makes use of several variants on "office under the United States," and it also uses "officer of the United States," "office under the Authority of the United States," and, sometimes, just "officer" without any modifying terminology. Why did the Framers make these stylistic choices (if a choice it was)?

(And what was the Constitution referring to in Article VI's obscure "public trust under the United States" language?)

From time to time commentators have suggested answers. One such view was put forward in 1995 by Professors Akhil and Vikram Amar. They opined that each of these categories were indistinguishable: each category referred to Executive Branch and Judicial Branch officers, including the President (and, apparently, the Vice President).

I contest their atextual position.

If you are interested in the "officers" dispute, or if you just want to know where the bodies are buried ... this paper is for you. "Six Puzzles for Professor Akhil Amar." Sometimes the title says all you really need to know...

And here are the puzzles:

Puzzle 1. Does “Officer,” as used in the Succession Clause, Encompass Legislative Officers?
Puzzle 2. Does Impeachment Extend to Former “Officers”?
Puzzle 3. Who are the “Officers of the United States”?
Puzzle 4. Is the President an “Officer of the United States”?
Puzzle 5. Is the Presidency an “Office . . . under the United States”?
Puzzle 6. Is “Officer of the United States” Coextensive with “Office under the United States”?

. . . with the author's proposed answer key to follow.

Time permitting, I'll make a try at answering the puzzles.  Anyone else who wants to send me their answers for posting (Professor Amar included!) is encouraged to do so.