At Lawfare, Roger Parloff: What Justice Scalia Thought About Whether Presidents Are “Officers of the United States”. From the introduction:
If the Supreme Court wants to definitively lift the shadow of Section 3 not just from the 2024 presidential race but also from the Jan. 6, 2025, counting and certification of Electoral College votes, the likely simplest and most definitive way to do so is to adopt the argument that the president is not an “officer of the United States.”
But one relevant fact about that argument has received surprisingly little attention. Justice Antonin Scalia, according to a 2014 concurrence he authored and a short private letter he wrote explaining it, believed that the president was, indeed, an “officer of the United States” for constitutional purposes. In addition, a strong case can also be made that Founding Father Alexander Hamilton likewise believed that the president was “an officer of the United States.”
A fun story follows.
Josh Blackman and Seth Barrett Tillman respond at Volokh Conspiracy. From the beginning:
The Ineligibility or Sinecure Clause (Article I, Section 6, Clause 2) states:
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 increased during such time . . . . (emphasis added).
Here and elsewhere, the Constitution of 1788 distinguishes "appoint" from "elect." Whether or not contemporaneous popular usage did that too is an entirely different question—just as legal usage sometimes differs from popular usage.
For a different point of view, see Roger Parloff, 'What Justice Scalia Thought About Whether Presidents Are "Officers of the United States",' Lawfare (Jan. 24, 2024, 9:01 AM), <https://lawfaremedia.org/article/what-justice-scalia-thought-about-whether-presidents-are-officers-of-the-united-states>. If Parloff and others are correct, if appoint and elect are basically synonyms across constitutional provisions, then a strategic Congress could raise the President's (or Vice President's) salary, and if Congress did so, then a Senator with 2 or 4 years remaining on his/her term would be barred from being elected/appointed to the presidency and vice presidency. In other words, an incumbent President seeking re-election, working in tandem with a cooperative Congress, could bar all senators (with 2 or 4 years remaining on their term) from the minority party, by raising the President's salary $1! And they say the Blackman/Tillman position has odd, unexpected, undesirable consequences?
Posted at 12:12 AM