Offices and Officers of the Constitution, Parts I and II

This Essay introduces our ten-part series, which will provide the first complete examination of all the officers and offices of the Constitution. This series will discuss the origins and meanings of twelve Constitution clauses that relate to six kinds of officers and offices. First, “Officers” is a reference to those who have been appointed in both the Executive and Judicial Branches. The second is the expression “Office”. . . “under the United States” is used to refer to appointments in the Executive or Judicial Branches. However, it also encompasses positions that are not apex in the Legislative Branch. The phrase “Office under the Authority of the United States”, thirdly, refers to all positions in the Executive and Judicial Branches.[s] . . . “Under the United States”, and it extends even further to cover a wider category of irregular jobs. The term “Officer of the Government of the United States,” as it is used in the Constitution, refers to those who preside over the Constitution. The Succession Clause uses the term “Officer” to refer to people who are “Officer”. . . Under the United States”, and those who “Officer”[s]”of “the Government in the United States.” Sixth. “Office or Public Trust Under the United States,” refers to two kinds of positions:[s] . . . “under the United States” to “public Trusts Under the United States.” While the former includes positions within all three branches, the latter group includes federal officials not under direct supervision of any higher federal authority.

The categorization of elected officials excludes them from “Officers in the United States” as well “Officers in the United States”.[s] . . . Under the United States.” Our Minimalist View is not shared by everyone. Vikram David and Akhil Reed Amar, Professors Akhil Reed Ammar, have presented an intermediate view: The elected president is “officer” of the United States. Members of Congress are not. Professor Zephyr Teachout supports a Maximalist view: both elected and appointed positions in each of the three branches are “offices” or “officers.” A fourth perspective may be taken by some scholars. Fine variations in Constitutional text shouldn’t be used to differentiate different types of officers and offices, according to a Clause Bound View. This view is based on the purpose of each clause.

You can’t reject one of the above four methods with complete certainty. Our Minimalist View makes a narrow claim. It is more effective than any of its rivals. Different “officer” and “officer language was used by the Framers in various clauses of Constitution. This was done to harmonize the Constitution’s reference to officers and offices. The Minimalist view was also consistent in the behavior of Washington and his cabinet as well as the First Congress. These evidences undermine the Intermediate, Maximalist and Clause-Bound Approaches.

Part I is this Essay. This Essay introduces the planned ten-part series. Part II will discuss the four ways to interpret the Constitution’s office-and-officer-language. Part III will examine the phrase “Officers in the United States”, which is found in the Appointments Clause and the Commissions Clause as well as the Impeachment Clause and the Oath or Affirmation Clause. Part IV will cover the history and evolution of the “Office”. . . “United States” drafting convention. Part V will examine the meaning and definition of “Office”. . . “under the United States”, which is found in the Incompatibility Clause. Part VI will focus on the phrase “Office under the Authority of the United States”, which is found in the Ineligibility Clause. Part VII will examine the Religious Test Clause. It uses the phrase “Office and public trust under the United States”. Part VIII will examine the phrase “Officer of the Government of the United States,” in the Necessary Clause and the Proper Clause. Part IX will focus on “Officer” in its entirety and unchanged by the Succession Clause. Part X concludes the series.