[This post will be the first installment in a series about oral argument in Trump v. Anderson.]
I’ll put my cards on the table: I was very critical of Justice Gorsuch’s decision in Bostock. To be clear, I did not disagree with his textualist methodology. Rather, I disagreed with how he applied it. Specifically, I faulted Bostock for starting with modern precedents that were not themselves textualist. But when Justice Gorsuch starts at the very beginning, from first principles, he is at his best. And I have always commended Justice Gorsuch’s willingness to follow text, even if it leads to counterintuitive results. For that reason, the Tillman amicus brief cited Bostock in several places to respond to any arguments based on the absurdity doctrine:
The Framers were not omniscient. They had no reason to think about a person who: (1) was elected as President; (2) but had never before taken any other constitutional oath; (3) then is alleged to have engaged in insurrection; and (4) then sought re-election. “Should we consider the expectations of those who had no reason to give a particular application any thought …?” See Bostock, 140 S.Ct. at 1751. No. Rather, “the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a [text] give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law.” See id. at 1737. In 1868, under the written word of the Constitution, the President was not an “Officer of the United States.”
We had hoped that those who joined the Bostock decision would extend this approach to the Section 3 context. During oral argument in Trump v. Anderson, Justice Gorsuch demonstrated, again, that he is the Court’s most careful, consistent textualist.
The Commissions Clause, the Impeachment Clause, the Appointments Clause
While Justice Jackson focused most of her attention on “Office under the United States,” Justice Gorsuch had several colloquies on “Officers of the United States.” Gorsuch simplified the inquiry, noting that “A lot hinges on the difference between the term ‘office’ and ‘officer.'” Justice Gorsuch asked Jonathan Mitchell, counsel for Trump, “Do you want to respond to some of the specific textual arguments on the ‘officer of’ with respect to the Appointments Clause, the Impeachment Clause, and some of the others?” Mitchell said “there are three textual inferences that could be drawn from each of those provisions . . . but the Commissions Clause, I think, is the strongest because it says ‘the president shall,’ … commission all the officers of the United States. ‘Shall’ is mandatory. ‘All’ is all-encompassing. And the president doesn’t commission himself, and he can’t commission himself. So that’s one of the first problems.”
Mitchell then anticipates and replies to the Respondents’ argument that “all” means all officers except the President. Members of Congress are also not commissioned. Same for the Vice President. And the Impeachment Clause lists separately the President and Vice President from the “Officers of the United States.” Finally, with the Appointments Clause, “the president is not appointed pursuant to Article II. Neither is the vice president. Neither are members of Congress. So they can’t be officers either.” All of these arguments are correct. (Tillman made them a decade ago.) Mitchell was most comfortable with intratextualist inferences. But he refused to go much beyond these inferences.
Justice Gorsuch asked Jonathan Mitchell to offer a “theory . . . from an original understanding or a textualist perspective why those two terms [‘Officer of the United States’ and ‘Office under the United States’], so closely related, would carry such different weight?” Later, Gorsuch asked, “Is there anything in the original drafting, history, discussion that you think illuminates why that distinction would carry such profound weight?”
Here, Justice Gorsuch was asking for a theoretical justification of why “Officer of the United States” would differ from “Office under the United States.” Tillman’s scholarship has developed this topic for more than a decade. The Tillman brief explained that the phrase “Office under the United States” in the Constitution traces its roots to a British drafting convention, ‘Office under the Crown,’ which referred to appointed positions. Tillman Br. at 14. By contrast, the phrase “Officers of the United States” was added fairly late in the Constitutional Convention to refer to categories of positions that are filled by the processes spelled out in Article II, Section 2. In Sweeping and Forcing, we explain that a study of these parliamentary drafting conventions is “neglected” in modern legal education. For that reason, many of those who see our approach as a “little odd” (to quote Justice Gorsuch) are unfamiliar with an entire body of jurisprudence that would have been known to those who framed the Constitution.
Jonathan Mitchell, however, gave none of these answers to Justice Gorsuch’s questions. He replied that there was no such history “of which we’re aware…We aren’t relying necessarily on the thought processes of the people who drafted these provisions because they’re unknowable.” These sources exist. They are knowable. Mitchell, for reasons that are not clear, just chose not to mention them.
Mitchell’s brief refused to take a position on what “Office under the United States” meant in the Constitution of 1788. (I will address that issue in a future post about Justice Jackson’s colloquies). And Mitchell steadfastly refused to invoke any authority beyond inferences from several clauses of the Constitution to inform the meaning of “Officer of the United States.” He didn’t cite Joseph Story. He didn’t invoke Smith or Mouat or Free Enterprise Fund. He didn’t mention any executive branch authority, including opinions from William Rehnquist and Antonin Scalia. He was wedded to the Commissions Clause, Impeachment Clause, and Appointments Clause. Indeed, he only touched 3 of the 4 relevant clauses. As we noted in our motion for leave to participate in oral argument, he refused to discuss the Oath Clause, which refers to “Officers of the United States.” I still think he was unwilling to address a Vice President’s oath “boomerang,” so he took an entire clause of the Constitution off the table.
The Incompatibility Clause and the Speaker
The most expansive argument Mitchell made was one we developed in our Sunday blog post: that the Respondents’ position renders every Speaker and Senate President Pro Tempore since 1789 unconstitutional under the Incompatibility Clause in Article I, Section 6. This argument made it into Mitchell’s brief, filed on Monday, and he raised it in a colloquy with Justice Gorsuch. Mitchell explained that the Speaker and Senate President Pro Tempore are “described as officers in Article I who are chosen by the legislature.” But due to the Incompatibility Clause, they cannot “hold offices under the United States,” because “if you’re a member of Congress, you cannot simultaneously hold an office under the United States.” This argument, as Mitchell acknowledged, “clearly demonstrates that members of Congress can’t hold offices” under the United States.
In that regard, the Respondents are wrong. But the counter is the argument advanced by the Amar brothers: members of Congress are not officers of or under the United States, but the President is. The argument that advances the ball is the Sinecure Clause. Mitchell flagged this issue in his reply brief, but did not mention it during oral argument. All he would do is draw “textual inferences” from constitutional structure with an “intratextualist analysis.” But he would not discuss any of the history that Tillman and I have developed. It is fair enough to cite Akhil Amar here, but Mitchell has to realize Amar thinks his position is a “gimmick” or worse.
Later in the argument, Justice Gorsuch asked, “how does Article I, Section 6, fit into this discussion?” Article I, Section 6 includes the Incompatibility Clause and the Sinecure Clause. Mitchell replied, “this is about officers being in the line of succession?” The Presidential Succession Clause is in Article II. Nonetheless, Justice Gorsuch responded, “Yes, exactly.” Mitchell explained that the presidential succession act, which places the Speaker and Senate President Pro Tempore in the line of succession, would be unconstitutional if those positions were not “Officers.” So they can be “Officers,” but not “Officers of the United States” or “Under the United States.” Mitchell stated, “So there is this gap between the term ‘officer’ and the phrase ‘officers of the United States,’ reinforcing the idea that ‘officers of the United States’ is a term of art that doesn’t refer just to federal officeholders, which is what the Anderson litigants are claiming, but refers only to those who are appointed, not to those who are elected.” Tillman and I have resisted the “term of art” label for reasons I won’t rehash here, but this argument gets it mostly right.
The Commissions Clause and the Speaker of the House
The most thorough discussion of “Officers of the United States” came during Justice Gorsuch’s questioning of Patrick Murray, counsel for the Colorado voters. Murray was also Gorsuch’s former law clerk. During Patrick Murray’s opening remarks, he dismissed the textual arguments advanced by Trump: “My friend relies on a claimed difference between ‘an office under’ and ‘an officer of the United States,’ but this case does not come down to mere prepositions. The two phrases are two sides of the same coin, referring to any federal office or to anyone who holds one.”
Justice Gorsuch responded with the Commissions Clause, which provides “all officers are to be commissioned by the president, [which] seems to be all-encompassing.” Murray said that in the Commissions Clause, “officers of the United States” refers ” to a narrower class of officers because we know that there are—” Justice Gorsuch interrupted him. “Except it says ‘all.'” Murray then tried to explain “there are classes of officers, like the President Pro Tem, who don’t get their commissions from the President.” I was baffled by this argument. The President Pro Tempore does not get commission at all. This argument seems to have been made up after briefing concluded. Akhil Amar’s brief argued that the President’s inauguration was something like a commission. (Tillman and I explained why that argument doesn’t work here.) But what is the SPPT’s commission?
Murray pivoted to the Appointments Clause. He said, “We know that the Appointments Clause refers to a class of officers who get their appointment from the Constitution itself rather than from presidential appointment.” Murray was referring to the “not otherwise herein provided for” language. Then Murray wanted to “read the Appointments Clause in line with the Commissions Clause, then the Commissions Clause is really talking about the president’s power.” I was a bit confused. I think the argument is that the Commissions Clause only requires the President to commission all of those “Officers of the United States” he appoints, but does not require him to commission the other appointed “Officers of the United States,” which includes the Senate President Pro Tempore and the Speaker. Here, Murray was endorsing the position in the Scalia letter that the SPPT was an “Officer of the United States.” But this argument ignores the word “all.” And it does not even confront the Incompatibility Clause objection that Justice Gorsuch raised. This was not a well thought-out answer. After researching this topic for nearly a decade, I found the lawyering all around to be fairly unsophisticated.
Murray tried to get away from the Constitution of 1788, because it is the weakest link in his argument. “But I think it’s important to bring us back to Section 3 in particular because that was 80 years” before the Fourteenth Amendment was ratified. Justice Gorsuch would not let Murray wriggle away. He asked if the Constitution makes the “distinction” between “Officer” and “Office under the United States” “particularly with respect to the Speaker and President Pro Tem”? Murray, to his credit, acknowledged that “The Constitution makes that distinction.” This concession undermines his entire case, which is that “Officer” and “Office under the United States” are interchangeable. I don’t think Murray quite realized how damaging this position was.
Murray again tried to pivot to 1868: “in Section 3, an officer of the United States is a person who swears an oath and holds an office.” Gorsuch tried again, “You agree they are officers who don’t hold an office?” That is, the Speaker is an “Officer” but not an “Office under the United States.” At this point, Murray started floundering. “They’re officers who may hold an office but don’t swear an oath under Article VI in that official capacity.” That answer is completely unresponsive. The oath question only matters for purposes of Section 3. Murray answered a question that was not asked. Gorsuch was asking about the Constitution of 1788. Gorsuch replied, “Well, how can they hold an office under the Incompatibility Clause? It says they can’t.” If the Speaker and Senate President Pro Tempore are “Officers of the United States” and hold “Office under the United States,” then members of Congress cannot serve in those presiding positions. Justice Gorsuch is exactly right. Eventually, Murray is forced to surrender the point at the podium—as we predicted. “Well, I think that’s a fair point, and I think that that may be an exception to the general rule, and one might consider [the Speaker and the SPPT] perhaps officers of the House and Senate because they are appointed by those bodies and preside over those bodies.”
Thank you! Hallelujah! The Speaker and SPPT are legislative presiding officers, but are not “Offices under the United States” and are not “Officers of the United States.” Murray abandoned the argument advanced at page 40 of the brief, and in Justice Scalia’s letter to Tillman. You cannot defend the position that the Speaker and SPPT are “Officers of the United States” or hold “Offices under the United States.” And once you give that position up, you cannot maintain the President and Vice President are “officers of the United States” whose appointments are provided for in Article II, Section 1. I doubt many people noticed, but this concession further undermines their case. Justice Gorsuch’s careful line of reasoning dismantled the Plaintiffs’ case.
A “little odd,” but that’s how the Constitution “works”
Gorsuch pushed Mr. Murray further. Gorsuch observed that he had “poked a little bit at the difference between ‘office’ and ‘officer’ in the earlier discussion.” Gorsuch suggested that distinction is “just how the Constitution uses those terms.” Gorsuch observed that the Speaker and Senate President Pro Tempore are “officers,” because the House Officers Clause and Senate Officers Clause “says they are.” But, Gorsuch countered, the Speaker and Senate President Pro Tempore “don’t hold an office under the United States because of the Incompatibility Clause that says they can’t.” Gorsuch is reading the Constitution intratextually.
Gorsuch then made what was an important, if not uncomfortable conclusion:
So maybe the Constitution to us today, to a lay reader, might look a little odd in distinguishing between “office” and “officer,” not prepositions, nouns, a distinction. But maybe that’s exactly how it works.
I couldn’t have said it any better. The distinction between “Officer,” “Officer of the United States,” and “Office under the United States” “might look a little odd” to “us today,” but “that’s exactly how [the Constitution] works.” There is no secret code. There is a text that judges are charged with interpreting. Justice Gorsuch gets it 100% correct. I could print these sentences on a bumper sticker.
My initial inclination was that the Court should issue a decision, perhaps unanimous, as quickly as possible. However, if the Court is leaning towards a holding that the States cannot disqualify Trump (I will address that argument in a future post), we have to recognize that, depending on the rationale adopted by the Court, this issue may return on or before January 6, 2025. A separate writing from one or more Justices could take the wind out of the sail of efforts to disqualify Trump during the Joint Session of Congress. For example, a joint concurrence from Justices Gorsuch and Jackson that the President is not an “Officer of the United States,” and the presidency is not an “Office under the United States,” would go a long way to quelling debates about whether votes for Trump would be “regularly given” under the Electoral Count Reform Act.
In closing, Will Baude and Mike Paulsen have recently changed their position, and now think this argument is at least plausible.
While we have not changed our ultimate conclusion – we still believe that the better answer is that Congress currently lacks a substantive power to evaluate the propriety of votes cast by electors – we have changed the level of certainty with which we express this conclusion. And we have also set forth at greater length the competing arguments on both sides. We have become persuaded by many discussions that the argument for an implied power of the joint session of Congress to decline to count electoral votes cast for a constitutionally disqualified candidate is at least plausible, even though we ultimately disagree with it.
Their paper now concludes:
But we confess to some uncertainty here. If the Constitution does not supply a clear, determinate answer, the various branches of government are constitutionally entitled each to exercise their own independent constitutional judgments on the question. Thus, even if state election officials, voters, electors, and the judiciary all support (or acquiesce to) the election of a president barred from holding office by Section Three, there is a serious argument that Congress might act as a last constitutional backstop against the installation of such a constitutionally disqualified person in the presidency.
This argument is on the wall now. If the Court punts, we are headed to the joint session. Let’s see if Mike Luttig follows along after the Supreme Court dismisses the Colorado case.