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Why Does The Phrase “Not Herein Otherwise Provided For” Appear In The Appointments Clause?

During the oral argument in Trump vs. Anderson, counsel for the voters was forced to abandon the claim that the Speaker and President Pro Tempore of the Senate were “officers of the United States” whose appointments were not provided for in Article II, Section 2. Patrick Murray referred to those officials who presided as “an exception to the general rule.” In doing so, Murray resigned two of the four positions that Justice Scalia listed in his letter to Tillman.

What about the other two positions in Scalia’s letter: The President and Vice President are “officers of the United States” whose appointments are not provided for in Article II, Section 2? Through the Sinecura Clause, Tillman and I have shown that the answer to this question is no. In our judgment, the phrase “not otherwise provided herein” is a null clause. There are no such offices. The Constitution tells us that there are No “United States officers” who are stationed elsewhere. All “Officials of the United States” are provided for in Article II, Section 2.

During the Works in Progress Originalism Conference, I was asked why the editors would include this phrase if it referred to zero positions. A possible answer can be found in the history of the drafting of the Appointments Clause. Earlier in the convention, the legislature had the power to appoint different offices, including judges, ambassadors, and treasurer. These appointments were not provided for in (what later became) the Appointments Clause. But over time, the Convention eliminated the legislature’s power to appoint these positions. The power to appoint these positions fell to the President. As a result, the phrase “not otherwise provided herein” indicated that the “officials of the United States” were only appointed in accordance with the procedures set forth in Article II, Section II. And to reinforce this point, the phrase “and which shall be established by law” was added to the Appointments Clause, making it clear that the “Officers of the United States” had to be created by law and not by the Constitution. There is nothing I have seen in the drafting history to suggest that the phrase “not provided herein” refers (as Scalia suggested) to the President, the Vice President, the Speaker, and the President Pro Tempore of the Senate.

Tillman and I discussed this story in depth at Part III from our series (pp. 387-390):

It is true that the history of the drafting of the Appointments Clause is complex. But it is consistent with our approach.

On May 29, 1787, James Madison presented the Virginia Plan. The Virginia Plan. The Virginia Plan would have empowered the “National Legislature” to elect judges. 1 Farrand records at 21-22. In contrast, at this juncture, the appointment of “executive branch officials” “was inherent to the ‘executive rights'” of the “National Executive.” Jennifer L. Mascott, Who are the “officers of the United States”?70 Stan. L. Rev. 443, 472 (2018) (citing 1 Farrand’s Records, supra note 21, in 20-22, 20 n.10). A later proposal featured this language: “The Senate of the United States shall have power to make treaties, and to appoint ambassadors and judges of the Supreme Court.” 2 Farrand’s Records at 183 (August 6, 1787), 389 n.8 (August 23, 1787); 392–93 (same).

On July 17, 1787, the Committee of the Whole amended what would become the Appointments Clause. ID. at 21. The new text provided that the “National Executive” would have the power to “appoint positions in cases not otherwise provided for(.)” ID. at 23 (emphasis added). What are “offices… not provided for elsewhere”? At this point, the text could be read in two ways. First, those other “positions” are certain positions that would be chosen one by the National Legislature, such as the judges and the Treasurer. Secondly, those other “offices” are certainly the pinnacle chosen one officials who would not be appointed. Or perhaps both readings were possible in July 1787. But the Convention would soon exclude both readings.

On August 6, 1787, the Committee of Detail reported a draft provision in which Congress had the power “to appoint a Treasurer by vote (.)” 2 Farrand’s Records, supra note 21, at 177, 181–82. On August 17, 1787, there was a motion to eliminate the powers of Congress to appoint the Treasurer. ID. at 315. This motion failed. ID.

On September 4, 1787, the Committee of Eleven transferred the power to appoint judges from Congress to the President, along with the advice and consent of the Senate. ID. in 493, 495; Mascott at 473. That draft text now provided: “The President…shall nominate and with the advice and consent of the Senate appoint Ambassadors and other public Ministers, Justices of the Supreme Court, and all other officers of the United States.” . whose appointments are not otherwise provided for herein.” 2 Farrand Records at 495, 539–40. It appears that with this revision the phrase “officers of the United States” was added to the Appointments Clause. Mascott at 472 ( “Drafts of the Appointments Clause did not include the expanded phrase ‘officers of the United States’ until September 4, 1787, during the latter stages of the Convention.”) And ten days later, on September 14, John Rutledge , of South Carolina, acted to eliminate Congress’s power to appoint the Treasurer. 2 Farrand’s Records at 612, 614. That official, Rutledge explained, should be “appointed in the same manner as other officials(),” i.e. , by the President. ID. at 614. The motion passed by 8 votes to 3. ID.

Even if the phrase “not otherwise provided for” in the draft Appointments Clause had referred to officials elected before September 4, that possible meaning was excluded after September 4. Now, the phrase “other US officials” would not refer to positions held by persons elected by the Legislature, nor could those “other officials of the United States” refer to elected officials. These revisions restricted the “provided” language to those positions that would be designated through Article II, Section 2 procedures.

Prior to the end of the Agreement, two final modifications were made to the Appointments Clause. First, a comma was added between “all other US officials.” and “whose appointments.” Secondly, an additional clause was added at the end: “and that will be the one established by the Law.” This table represents the last two revisions made to the Appointments Clause, with the changes highlighted in bold and underlined.

Before the end of the Convention At the conclusion of the Convention
(The President) shall appoint Ambassadors, other public Ministers and Consuls, Justices of the Supreme Court, and all other officers of the United States whose appointments are not herein provided: but Congress may, by law, confer the appointment of such officers lower. , as they deem appropriate, only in the President, in the Courts of Justice or in the Heads of Department. (The President) shall appoint Ambassadors, other public Ministers and Consuls, Justices of the Supreme Court and all other officers of the United States., whose appointments are not provided for in this documentand that will be established by Law: but Congress may, by law, entrust the appointment of such inferior officers, as they think proper, to the President alone, to the Courts of Justice, or to the Heads of Departments.

The Appointments Clause now provided in its entirety: “(a) (The President) shall nominate, and with the advice and consent of the Senate, appoint (b) Ambassadors, other Ministers and public Consuls, Justices of the Supreme Court, and all other officials of the United States, (c) whose appointments are not provided for herein, (d) and that will be established by Law.” We have divided the Clause into four sections: (a), (b), (c) and (d).

The word “and” is very significant. That conjunction suggests that paragraphs (c) and (d) both modify clause (b). In other words, paragraphs (c) and (d) define what positions an “Officer() of the United States” may hold. Clause (c) tells us that “all other officers of the United States” must be appointed in accordance with Article II, Section 2. The word “all” is not surplus. (1) And clause (d) tells us that these “officers of the United States” must be “established by law.” In other words, those positions (“Officers of the United States”) would be created by law after the new Constitution came into force. It follows that these clauses cannot refer to elected officials because such high-level positions were created by the Constitution and not by law. In fact, the first President, the first Vice President and all the members of the First Congress were – obviously – elected. previous to the promulgation of any federal statutes.

The addition of the comma between clauses (b) and (c), and the addition of clause (d), provide some additional support for our construction of the Appointments Clause. Had these amendments not been made, we still believe that our reading of the Appointments Clause would be the best. But these changes reinforce our construction.

We recognize that the history of the drafting of the Appointments Clause is complicated and confusing. In short, we think that the history of the newsroom leans towards our position. But even if we were wrong about that story, it is the final printed Constitution that was sent to the states for ratification that is “our” law, not the earlier drafts.

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