[This post is co-authored with Professor Seth Barrett Tillman.]
In Trump v. United States (July 1, 2024), Justice Thomas wrote a concurrence that opined on the constitutionality of the Special Counsel’s appointment.
The Constitution’s Appointments Clause provides:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Justice Thomas made several observations about the Appointments Clause.
First, Justice Thomas wrote:
Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be “established by Law.” [FN1]
[FN1] Although a Government official may also be a “nonofficer employe[e],” I set aside that category because it is difficult to see how an official exercising the Department of Justice’s duties to enforce the criminal law by leading a prosecution could be anything but an officer. Lucia v. SEC (2018) (Thomas, J., concurring); see SW General (opinion of Thomas, J.). If the Special Counsel were a nonofficer employee, the constitutional problems with this prosecution would only be more serious. For now, I assume without deciding that the Special Counsel is an officer. [slip op. at 3.]
It is indeed quite problematic for a “nonofficer employee” to exercise the powers of an “Officer of the United States” who can lead a criminal prosecution. The Special Counsel, for example, is granted the powers of a United States Attorney. If the Special Counsel is merely a “nonofficer employee” exercising the powers of an “Officer of the United States,” then the associated “constitutional problems” are, indeed, “serious.”
We appreciate that Justice Thomas only “assumed without deciding” that the “Special Counsel is an officer” of the United States, and not a “nonofficer employee.” But there is an argument that the Special Counsel, which is a non-continuous position, cannot be an officer at all. We have raised that argument in an amicus brief before the U.S. District Court for the Southern District of Florida. Blackman also presented oral argument on this issue on June 21, 2024.
Second, Justice Thomas observed that the Constitution establishes a limited number of positions:
The Constitution itself creates some offices, most obviously that of the President and Vice President.
No statute was needed to establish the presidency or vice presidency. We could add to this list the Speaker of the House and Senate President Pro Tempore. We have long taken the position, and for several independent reasons, that these four positions, as well as rank-and-file members of Congress, are not “Officers of the United States.” One of those reasons is that these positions were not established “by law,” which means, “by statute,” but rather, these positions were established by the Constitution itself.
Additionally, the text provides that “Officer of the United States” positions “shall be established by Law.” The word “shall” suggests some future action after the Constitution went into effect. By contrast, the elected federal apex positions were established by the Constitution. No future federal legislative action was needed to establish these positions.
Third, Justice Thomas agreed with part of our reading of the Appointments Clause: “Officers of the United States” must be established “by law.” Thomas wrote:
Although the Constitution contemplates that there will be “other Officers of the United States, whose Appointments are not herein otherwise provided for,” it clearly requires that those [other] offices “shall be established by Law.” §2, cl. 2. And, “established by law” refers to an office that Congress creates “by statute.” Lucia v. SEC (2018) (Thomas, J., concurring); see also United States v. Maurice (CC Va. 1823) (Marshall, C. J.).
The necessary consequence of Thomas’s position is that the President, the Vice President, as well as the Speaker of the House and the Senate President pro tempore are not “Officers of the United States.” They can’t be, because their positions were not established by law.
You may think Justice Thomas’ and our position is obvious. But Justice Scalia’s much vaunted letter to Tillman in 2014, which we published in 2023, took just the opposite position. Scalia wrote that the President, Vice President, Speaker, and Senate President Pro Tempore are “Officers of the United States.” On this point, Thomas was correct, and Scalia was incorrect: “Officers of the United States” must be established by statute. The President, Vice President, Speaker of the House, and Senate President Pro Tempore, as well as rank-and-file members of Congress, are not established by statute. These stations are elected apex federal officials. In contrast to elected apex officials, as a general matter, “officers of the United States” and officers under the United States are appointed by and responsible to elected apex officials.
Moreover, I think we can understand Justice Thomas to reject the position that the President is somehow “appointed”—that is, the President’s appointment “is otherwise provided for.” We think Thomas would agree with the conventional view that the President is not appointed; rather, the President is elected by electors. By contrast, during the Section 3 litigation, some people argued that the President is appointed, rather than elected.
The argument has quickly disappeared from our collective view.
Additionally, Thomas only partially agrees with our interpretation of the Appointments Cause. He suggests that there may be other “officers of the United States” whose appointments are not covered in Article II, Section 2, which includes the Appointments Clause. However, we disagree with Justice Thomas on this point. We believe that the phrase “not herein otherwise provided for” implies that there are no positions filled by mechanisms outside of Article II, Section and the Appointments Clause. All “Officers of the United States” are provided for in Article II, Section 2. If Thomas’s interpretation were correct, the language in the Appointments Clause would be different. Thomas does not specify which officers he is referring to, but we believe that all officers, both principal and inferior, must be established by law and appointed according to Article II, Section 2 procedures.
The case of Trump v. United States did not involve an Appointments Clause challenge, but this issue is currently being reviewed by the U.S. District Court for the Southern District of Florida.
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