Tuesday, July 14, 2020

Justice Breyer made it impossible for Congress to impeach territorial officers for accepting bribes

Guest Blogger

The unintended consequences of not reading the Constitution’s “office”- and “officer”-language intratextually.

Josh Blackman and Seth Barrett Tillman

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.

Justice Thomas concurred in the PROMESA case. Justice Thomas concluded that PROMESA board members should be considered territorial officers. These positions were created by Congress’s authority under the Article IV Territory Clause. As a result, Thomas concluded that these positions are not authorized by Articles I, II, and III. He wrote, “Since the founding, this Court has recognized a distinction between Article IV power and the powers of the National Government in Articles I, II, and III.” Justice Thomas added, “The founding generation understood the phrase “Officers of the United States” to refer to officers exercising the powers of the National Government, not officers solely exercising Article IV territorial power.” From this history, Justice Thomas reasoned, “Because the Board’s members perform duties pursuant to Article IV, they do not qualify as ‘Officers of the United States.’” The majority and Justice Thomas both agreed that territorial officers, holding duties like the members of the PROMESA board, are not “officers of the United States.”

We have some doubts about whether the PROMESA majority and concurrence correctly decided that territorial officers “whose powers and duties are primarily local in nature” cannot be “officers of the United States.” As a threshold matter, not all territorial officers stand in the same position. Historically, territorial officers have been chosen in several different manners. First, they can be elected by local citizens Second, they can be appointed by the President, with or without Senate advice-and-consent. Third, they can be or appointed by other elected territorial officials or appointed territorial officers. We disagree with the Court’s approach. In our view, it is the process of a position’s appointment pursuant to the Appointments Clause that makes the position an “officer of the United States.” The Court’s holding swept far too broadly.

Our skepticism also finds some support in a 1793 Hamilton-signed Treasury Report. The Treasury had prepared the Report in response to an official 1792 House inquiry. In this document, the House had asked Hamilton to list the emoluments of “every person holding any civil office or employment under the United States.” And Hamilton included an entry for Arthur St. Clair, the Governor of the Northwestern Territory (the “old Northwest”). By this time, St. Clair had been appointed by President Washington, and confirmed by the Senate. Hamilton understood St. Clair to fall within the ambit of the phrase “office . . . under the United States.” Because St. Clair received his position pursuant to the Appointments Clause, we infer that Hamilton would have also understood St. Clair to serve as an “officer of the United States.” This territorial officer would have been considered part of the Executive Branch.

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 St. Clair. 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.

The PROMESA Court may have resolved one question with respect to the Appointments Clause, but it created far greater problems with respect to the Impeachment Clause and the Foreign Emoluments Clause. The Constitution’s “office”- and “officer”-language has a Newtonian quality to it. Removing an office from the scope of one clause will necessarily remove it from the scope of other clauses using the same “office”- and “officer”-language. Likewise, subjecting an office to the scope of one clause will necessarily subject it to other clauses. Every action has an equal and opposite reaction. It is not possible to focus on a single provision at a time. This analysis should demonstrate that the Constitution’s “office”- and “officer”-language must be considered intratextually. A ruling with respect to one clause will have unintended consequences for other clauses. The Appointments Clause cannot be considered in a vacuum.

[This post is an excerpt from our forthcoming article, Offices and Officers of the Constitution.]

Josh Blackman is Associate Professor of Law at the South Texas College of Law Houston. You can reach him by e-mail at joshblackman at

Seth Barrett Tillman is Lecturer, Maynooth University Department of Law. You can reach him by e-mail at sbarretttillman at

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