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07/16/2020

Josh Blackman & Seth Barrett Tillman on Impeaching Territorial Officers
Michael Ramsey

At Balkinization, Josh Blackman & Seth Barrett Tillman: Justice Breyer made it impossible for Congress to impeach territorial officers for accepting bribes.  From the introduction:

Recently, the Supreme Court decided Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC. (We wrote about it here.) This case considered the status of members of the Financial Oversight and Management Board for Puerto Rico.
 
The board members are appointed by the President without the Senate’s advice and consent. These positions were created by the Puerto Rico Oversight, Management, and Economic Stability Act of 2016 (PROMESA). Justice Breyer’s majority opinion found that the board members are not principal “officers of the United States.” (The parties did not contend the board members might be inferior “officers of the United States.”) Rather, the Court held, they are “local officers that Congress vests with primarily local duties.” Thus, their appointments are not subject to the strictures of the Appointments Clause: that is, appointment by the President, with advice-and-consent by the Senate.
 
However, the Court did not define how the PROMESA board members should be characterized. Justice Breyer recognized that if the PROMESA board members “are not officers of the United States,” they must be “some other type of officer,” and “the Appointments Clause says nothing about them.” But what are they? Justice Breyer observed that “[l]ongstanding practice indicates that a federal law’s creation of an office in this context does not automatically make its holder an ‘Officer of the United States.’” That is, a federal statute can create another type of federal officer—that is, one who is not an “officer of the United States,” as that phrase is used in the Appointments Clause.
 
The problem is...
 
The PROMESA case also has unanticipated consequences. If territorial officers with only local duties are not “officers of the United States,” then they are not subject to the Impeachment Clause. That provision extends to the “President, Vice President and all Civil Officers of the United States.” Thus, Congress would be helpless to impeach, try, remove, and disqualify a territorial officer—no matter how egregious the conduct. Consider an example involving [Arthur] St. Clair [Governor of the Northwest Territories]. Trump v. Mazars recounted that in 1792, he led a “campaign against the Indians in the Northwest Territory, which had concluded in an utter rout of federal forces when they were caught by surprise near the present-day border between Ohio and Indiana.” Under the PROMESA Court’s reading of the Appointments Clause, Congress would have been unable to remove St. Clair through impeachment processes. By contrast, we can point to a 1796 opinion of the Attorney General, Charles Lee, advising the House of Representatives that it may proceed against a territorial judge by impeachment.
 
Justice Breyer’s majority opinion has other consequences. If territorial officers with primarily local duties are not “officers of the United States,” regardless of how they are appointed, then they may also not hold “office[s] . . . under the United States.” Under the prevailing readings of the Constitution, there is no meaningful difference between the Constitution’s “office”- and “officer”-language. The two phrases—“officers of the United States” and “office under the United States”—are seen as co-extensive. (We do not subscribe to that modern atextual reading of the Constitution.) If these conclusions are accurate, then territorial officers would not be subject to the Foreign Emoluments Clause. As a result, St. Clair and other frontier officers could have freely accepted foreign state diplomatic gifts or, even, bribes from England, France, and Spain, without seeking congressional consent. Congressional consent would not be required for diplomatic gifts, and impeachment would not extend to outright bribes. Moreover, such territorial officers would not be bound by two other provisions that use the phrase “office . . . under the United States”: the Elector Incompatibility Clause and the Impeachment Disqualification Clause.