There is an excellent article by James Heilpern and Michael Worley which discusses whether the president is an “officer of the United States” within the meaning of section 3 of the 14th amendment. It is worth reading the article and/or a shorter but also very good piece on Lawfare by Roger Parloff discussing the same issues. Today I just want to comment on one of those issues, which is whether the Constitution draws a sharp distinction between “election” and “appointment.”
The elaborate theory constructed by Professors Tillman and Blackman to explain why the president is not an “officer of the United States” and does not (at least under the original Constitution) hold an “office under the United States” is based in significant part on the premise that the president is “elected,” not “appointed.” In today’s parlance this is a familiar distinction, and I have not questioned it in my prior writings on this subject. However, my review of both the federal Constitution and early state constitutions has suggested that the distinction was far less clear cut than Tillman and Blackman seem to believe.
Heilpern and Worley argue that at the time of the framing “the terms appointment and election were truly interchangeable, at least to the extent that an election was one form of appointment.” (p. 25) [note: the way I would put it is that appointment was a broader term than election and that election was one form of appointment]. They lay out an impressive amount of evidence in support of this conclusion at pages 17-26 of their article. I have just a few things to add which tend to reinforce their conclusion.
My focus was mainly on congressional officers. Tillman and Blackman assert that congressional officers are appointed, not elected. At least they say this explicitly about what they call “non-apex” congressional officers such as the clerk of the House and secretary of the Senate. See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part I: An Introduction, 61 S. Tex. L. Rev. 309, 316-17 (2021). I think they also believe that “apex” officers (i.e., the speaker of the House and president pro tempore of the Senate) are also “appointed,” but to my knowledge they do not explicitly say this. If they do not believe this, that would be odd because the Constitution refers to the same process of selection for all congressional officers. See U.S. const., art. I, § 2, cl. 5 (“The House of Representatives shall chuse their Speaker and other Officers”); U.S. const., art. I, § 3, cl. 5 (“The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.”).
In any event, the Constitution does not expressly say that congressional officers are either appointed or elected. Instead, as the above cited provisions indicate, it says that each house should “chuse” its officers. But to choose and to elect are (and were at the time of the framing) synonyms. See Samuel Johnson’s Dictionary (1773) (defining “to elect” as “to choose for any office or use; to take in preference to others”). Moreover, the Constitution uses them as such. For example, members of the House are “chosen every second Year by the People of the several States,” senators were “chosen by the Legislature” of their respective states, and the House shall “chuse by Ballot” a president when no candidate has a majority of electoral votes. Each of these clauses uses a variant of “choose” to describe the conduct of an election. Other constitutional clauses also illustrate this point. See U.S. const., art. I, § 3, cl. 3 (“No Person shall be a Senator who shall not have attained to the Age of thirty Years, and ben nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”) (emphasis added); U.S. const., art. II, § 1, cl. 1 (The president “shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected as follows . . . .”) (emphasis added).
There are other reasons to believe that congressional officers are elected. As viewers of C-SPAN have become well aware during this Congress, the House conducts an “election” to decide who will be its speaker. Other congressional officers, such as the clerk and the sergeant-at-arms are likewise elected by a vote of the House. See Charles W. Johnson, John V. Sullivan & Thomas J. Wickham, Jr., House Practice: A Guide to the Rules, Precedents, and Procedures of the House 663-64 (2017) (distinguishing elected House officers, such as the clerk and sergeant-at-arms, from House officers who are appointed but not elected, such as the parliamentarian). Nor is this merely modern terminology, as the first House “proceeded to ballot” for a speaker and clerk, and “Mr. John Beckley was elected” as clerk. I Annals of Congress 100 (Apr. 1, 1789).
Furthermore, it would make little sense to say that congressional officers are not elected when they are chosen in the same manner as other elected officials, most notably senators who were originally chosen by a vote of the state legislature. If there is a reason why the vote of the state legislature to select a senator is an “election,” but the vote of the House or Senate to select officers is not, it escapes me.
Just because congressional officers are elected, however, does not mean it is incorrect to say that they are appointed. Tillman and Blackman conceive of election and appointment as mutually exclusive terms, but I agree with Heilpern and Worley that this is wrong. Presidential electors, for example, are appointed, but the manner of appointment is by an election. As Heilpern and Worley show, even the first presidential election involved states appointing their electors either by popular election or by election of the legislature. (pp. 19-20). Moreover, the Constitution refers to “the Time of chusing the Electors,” thus using the same language that it uses to describe other elections. See U.S. const., art. II, § 1, cl. 4. It was therefore not inconsistent at the time of the framing to refer to congressional officers as both elected and appointed. Indeed, the records of the first Congress reflect this. See I Annals of Congress 100 (referring to the House clerk as both elected and appointed); id. at 242 (same with regard to the House chaplain).
As Heilpern and Worley note (pp. 20-21), the early state constitutions also confirm that the term “appointment” could be used to describe the process of electing officers. Tillman and Blackman apparently believe that only those state officials chosen by direct vote of the people should be considered “elected,” while those chosen by state legislative bodies were “appointed.” See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachments, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 422 (2023). But this terminology conflicts with the usage of state constitutions themselves, where offices filled by the ballot of the legislature could be described as elected, appointed, or both. See, e.g., Md. Const. of 1776, art. XXVIII, XXXII (referring to both election and appointment of the governor); Ga. Const. of 1777, art. XXIV (same); see also William C. Webster, Comparative Study of the State Constitutions of the American Revolution, 9 Annals of the Am. Academy of Pol. & Social Science 64, 80 (May 1897) (“In seven states [the chief executive] was elected by joint ballot of the two houses of the legislature; in Pennsylvania by the joint ballot of the assembly and executive council; in only four by the direct vote of the qualified electors of the state.”). Moreover, it should be noted again that if only direct popular “election” counts, then neither U.S. senators (in the original Constitution) nor the U.S. president/vice president should be considered “elected” either.
For these reasons the terms “appointment” and “election” were not mutually exclusive at the time the Constitution was framed and they should not be read as mutually exclusive as they were used in the Constitution. In my next post I will explain why this conclusion poses a significant problem for the Tillman/Blackman theory.