Just an interesting point . . . Justice Alito wrote:
Department of Transportation v. Association of American Railroads, No. 13-1080, 575 U.S. ____, slip op. (Mar. 9, 2015) (Alito, J., concurring):
Under the Constitution, all officers of the United States must take an oath or affirmation to support the Constitution and must receive a commission. See Art. VI, cl. 3 (“[A]ll executive and judicial Officers . . . shall be bound by Oath or Affirmation, to support this Constitution”); Art. II, § 3, cl. 6 (The President “shall Commission all the Officers of the United States”). . . . There should never be a question whether someone is an officer of the United States because, to be an officer, the person should have sworn an oath and possess a commission.
Id. at 2–3.
Unless an “inferior Office[r]” is at issue, Article II of the Constitution demands that the President appoint all “Officers of the United States” with the Senate’s advice and consent. Art. II, § 2, cl. 2. This provision ensures that those who exercise the power of the United States are accountable to the President, who himself is accountable to the people.
Id. at 8.
If we take J Alito’s writing at face value—and I think we should—then the President and Vice President are not “officers of the United States.” Full stop. Alito’s position is not new. It has deep roots in prior American judicial decisions. See, e.g., United States v. Mouat, 124 U.S. 303, 307 (1888) (Miller, J.) (“Unless a person in the service of the government, therefore, holds his place by virtue of an appointment by the president, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not strictly speaking, an officer of the United States.”); United States v. Smith, 124 U.S. 525, 532 (1888) (Field, J.) (same); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 130 S. Ct. 3138, 3155 (2010) (Roberts, C.J.) (“The people do not vote for the ‘Officers of the United States.’ Art. II, § 2, cl. 2.”).
This view has many implications for our understanding of the Appointments Clause and for other provisions in the Constitution using the phrase “officer of the United States” (and its close variants). See, e.g., Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1372 (Fed. Cir. 2006) (Gajarsa, J., concurring in part and concurring in the en banc judgment) (“It is plain that the President is not an ‘officer of the United States’ for Appointments Clause, Commission Clause, or Oath of Office Clause purposes.”). And this view is supported by early scholarship. See, e.g., 1 Joseph Story, Commentaries on the Constitution of the United States 578 (Melville M. Bigelow ed., William S. Hein & Co., Inc. 5th ed. photo. reprint 1994) (1891) (“[T]he [Impeachment] clause of the Constitution now under consideration does not even affect to consider the[] [President and Vice President] officers of the United States. It says, ‘the President, Vice-President, and all civil officers (not all other civil officers) shall be removed,’ &c. The language of the clause, therefore, would rather lead to the conclusion that they were enumerated, as contradistinguished from, rather than as included in the description of civil officers of the United States.”). But see Akhil Reed Amar, America’s Unwritten Constitution 577 n.17 (2012) (“Under Article II, section 4, only ‘civil Officers’ are impeachable. (Presidents and vice presidents are also mentioned separately in th[e] [Impeachment] clause, perhaps to blunt any argument that their role atop—or in the VP’s case, potentially atop—the military chain of command removes them from the category of ‘civil’ officers.)”); Steven G. Calabresi, Closing Statement, A Term of Art or the Artful Reading of Terms?, 157 U. Pa. L. Rev. PENNumbra 154, 155 (2008) (“Original meaning [in regard to the Constitution’s Office-language] is thus about what the ordinary citizen on the street would have thought words meant. It is not about the understanding of someone as erudite as Justice Story.”).
However, there is now an established line of originalist scholarship asserting that the President is an “officer of the United States.” See, e.g., Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113, 136 n.143 (1995) (“[Professor] Manning’s key suggestion is that an Acting President is not, as such, an ‘Officer of the United States.’ This is a novel claim—which itself should worry a self-described traditionalist—and an odd one. If an acting President, wielding the full and awesome executive power of the United States, is not an ‘Officer of the United States,’ what is he?” (citation omitted) (emphasis added)); see also Steven G. Calabresi, Rebuttal, Does the Incompatibility Clause Apply to the President?, 157 U. Pa. L. Rev. PENNumbra 134, 145 (2008) (“Washington’s failure to commission [himself, his Vice President, and his successor] thus looks far more like an understandable oversight on his part than it does like a deliberate decision in favor of the highly implausible conclusion that Presidents and Vice Presidents are not officers of the United States.”); Saikrishna Bangalore Prakash, Response, Why the Incompatibility Clause Applies to the Office of President, 4 Duke J. Const. L. & Pub. Pol’y143, 148 (2009) (“The Constitution uses the phrase ‘Office under the United States’ or its equivalents multiple times to distinguish federal officers from officers under the authority of a state, not to distinguish, in a highly obscure manner, the President from other officers. All federal officers, executive and judicial, occupy ‘offices under the United States’ and are ‘officers of the United States.’” (footnote omitted) (emphasis added)).
My own view is that Justice Alito—and Justices Story, Field, and Miller—have it exactly right. Perhaps we might hear at The Originalism Blog or elsewhere from any of those who have taken a position at odds with that recently expressed by Justice Alito?
MIKE RAMSEY ADDS: Sasha Volokh has this lengthy comment on Justice Alito's concurrence, although not generally from an originalist perspective: Does the Amtrak statute violate pretty much all of separation of powers? Justice Alito’s take.
Posted at 11:22 AM