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Michael Ramsey


My Answers to Seth Barrett Tillman's Six Puzzles (Updated)
Michael Ramsey

A while back Seth Barrett Tillman posed six puzzles on the Constitution's use of "officer" (together with some impressively snarky criticism of Akhil Amar's views on the matter).  The core of the six puzzles is that the Constitution uses three distinct but closely related terms in various clauses: "officers," "officers of the United States," and "offices under the United States."  Do they all mean the same thing?  His answers are here.  For what it's worth, here are my tentative attempts to solve the puzzles (with the caveat that historical research could easily change my mind).

Puzzle 1. Does 'Officer,' as used in the Succession Clause, Encompass Legislative Officers?

SBT Answer:  Yes. 

MDR answer:  I agree.  The Constitution specifically describes "officers" of the legislative Houses, and the succession clause refers to "officers" without limitation.  The policy arguments to the contrary are not sufficient to demonstrate absurdity (as SBT shows).  The succession clause does not say "officers of the United States," so even though that phrase may have a narrower meaning (see below), that does not affect the meaning of the succession clause.

Puzzle 2. Does Impeachment Extend to Former 'Officers'?

SBT Answer:  Yes. 

MDR answer:  Probably.  I think it is somewhat unclear; specifically I don’t think the ineligibility clause and the incompatibility clause show what SBT thinks they show.  However, the fact that the punishment for conviction after impeachment can include barring future office (Art. I, Sec. 3) suggests that the clause can apply to former officers.  A definitive answer would require some close study of English parliamentary practice.  And I’m less sure that all other uses of “officer” in the Constitution include former officers.

Puzzle 3. Who are the 'Officers of the United States'?

SBT answer:  Executive and judicial officers, but not delegates to a national convention, who instead (probably) hold a “public trust under the United States.” 

MDR answer:  I agree, mainly on the basis of my answer to Puzzle 4 (see below).

Puzzle 4. Is the President an 'Officer of the United States'?

SBT answer:  No. 

MDR answer:  I agree. SBT makes a strong case that “officer of the United States” is a term of art, especially based on the commissions clause.  Although it’s a counterintuitive use, I think the commissions clause is conclusive: “He [the President] ... shall Commission all the Officers of the United States.”  No commission = not an officer of the United States.  The President does not commission himself, the vice-president, or legislative officers, and it would be odd to think the President should do so.  Also, as SBT says, the impeachment clause lists the President and Vice-President separately from “officers of the United States.”  Note, though, that this conclusion means legislative officers are not subject to impeachment, which may appear problematic.

Puzzle 5. Is the Presidency an 'Office . . . under the United States'?

SBT answer:  No; the term includes only “all positions created, regularized, or defeasible by federal statute.”   

MDR answer:  Tentatively, yes.  Those who hold “[o]ffice … under the United States” may well differ from those who are officers of the United States.  As SBT says, we should not lightly disregard differences in wording.  But SBT’s answer has the odd result of excluding the President from the emoluments clause and the incompatibility clause (and, it appears, also would allow the President to serve as an elector under Article II, Section 1); his argument here is mostly based on post-ratification evidence that I don’t find wholly persuasive (although it cannot be dismissed lightly).

Puzzle 6. Is 'Officer of the United States' Coextensive with 'Office under the United States'?

SBT answer:  No. 

MDR answer:  I agree, based on the commissions clause.  But I see different consequences, specifically in the answer to puzzle 5.  I would say, contra SBT, that the President holds an “Office under the United States” while not being an officer of the United States. 

UPDATE:  Seth Barrett Tillman adds:

Lest there be any doubt in your mind, my view is that a President or VP can be an elector (even if running in that election). ...

You mention the Emoluments Clause in your post. You might clarify if you meant the Foreign Emoluments Clause (Const. 1/9/8) or the Emoluments/Sinecure Clause (Const. 1/6/2).

On the latter point, I was thinking of the foreign emoluments clause.  But the Article I, Section 6 emoluments clause is a puzzle that I don't think helps either of us:  "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during the time."  That sounds like it is using "Office under the Authority of the United States" to mean an office held by an Officer of the United States [as SBT and I both understand the latter term], because presumably it does not refer to legislative offices and it expressly refers only to appointed offices (i.e., not the presidency or vice-presidency).

RELATED:  I was talking with Mike Rappaport about these puzzles, and he asked (among other things):  what is going on with the Constitution's references to "civil" officers/offices?  Is that really meant in contrast to "military" offices?  Meaning, for example, that military officers can't be impeached, and that members of Congress can be appointed to military offices created during the time for which they were elected?  Why would the drafters draw this distinction?

It may be that Professor Tillman has only scratched the surface of the Constitution's officer-related puzzles.