[This post is co-authored with Professor Seth Barrett Tillman.]
exist Trump v. United States (July 1, 2024), Judge Thomas wrote a concurring opinion on whether the appointment of the Special Counsel was constitutional.
The Appointments Clause of the Constitution provides:
[The President] There shall be nominated, and by the advice and consent of the Senate, ambassadors, other ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments shall not otherwise be provided for, and shall be provided by law: but Congress may, by law, Subordinate officials deemed appropriate shall be appointed individually to the President, the courts, or to the heads of departments.
Justice Thomas made several points about the appointment clause.
firstJustice Thomas wrote:
However, before the president or department heads can appoint any officials, the constitution requires that basic positions must be “established by law.” [FN1]
[FN1] Although government officials may also be “non-official employees”[e],” I set this category aside because it is difficult to see how an official who fulfills the Department of Justice’s responsibilities of enforcing criminal laws by leading prosecutions could be anything other than an official. Lucia v. U.S. Securities and Exchange Commission (2018) (Thomas, J., concurring); see Southwest General (Opinion of Thomas, J.). The constitutional problems with this prosecution would only be more serious if the special prosecutor were a non-officer employee. For now, I’m assuming the special prosecutor is the official, but not sure. [slip op. at 3.]
It is indeed very problematic for “non-official employees” to exercise the power of “U.S. officials” who can lead criminal prosecutions. For example, a special prosecutor is given the powers of a U.S. attorney. If the special counsel is simply a “non-official employee” exercising the powers of an “official of the United States,” then the relevant “constitutional issues” are indeed “serious.”
We appreciate that Judge Thomas merely “assumed, not decided,” that “the Special Counsel is an official of the United States,” not a “non-officer employee.” But there is a view that the special prosecutor is a non-continuous position and cannot be an official at all. We made this argument in a report Statement of Friends The case is heard in the U.S. District Court for the Southern District of Florida. Blackman also presented oral arguments on this issue on June 21, 2024.
secondJustice Thomas noted that the Constitution provides for a limited number of offices:
The Constitution itself creates a number of offices, most notably the President and Vice President.
Can be established without any regulations Presidency or vice-president. We can add the following to this list Speaker of the House of Representatives and Senate President Pro Tempore. For several independent reasons, we have long taken the position that these four offices, as well as rank-and-file members of Congress, are not “officials of the United States.” One of the reasons is that these positions were not created.”according to law,” which means “by statute,” but rather the offices are established by the Constitution itself.
Additionally, the text stipulates that the position of “Officials of the United States”Will Required by law. back The constitution takes effect. In contrast, elected federal offices are created by the Constitution. No future federal legislative action is required to establish these positions.
thirdJustice Thomas agreed with part of our interpretation of the Appointments Clause: “Officers of the United States” must be created “by law.” Thomas wrote:
Although the Constitution contemplates that there will be “other officers of the United States, whose appointments are not otherwise provided for,” it expressly requires that these officers [other] The office “should be established in accordance with the law.” §2,cl. 2. Moreover, “established by law” refers to offices established by Congress “in accordance with regulations.” Lucia v. U.S. Securities and Exchange Commission (2018) (Thomas, J., agreeing); see also USA v. Morris (CC Va. 1823) (Marshall, CJ).
The corollary to Thomas’ position is that the President, Vice President, and the Speaker of the House and President Pro Tempore of the Senate no “U.S. officials.” They couldn’t be, because their positions are not defined by law.
You might think it’s obvious where Judge Thomas and we stand. But Justice Scalia was very bragging letter In 2014, we publish In 2023, the opposite position was taken. The president, vice president, speaker and president pro tempore of the Senate are all “officials of the United States,” Scalia wrote. On this point, Thomas is right and Scalia is incorrect: “Officials of the United States” must be established by statute. The President, the Vice President, the Speaker of the House of Representatives, the President Pro Tempore of the Senate, and the rank-and-file members of Congress are not created by statute. These stations are the top elected federal officials. Unlike the top elected official, generally speaking, “officials of the United States” and officials below the United States are appointed by and accountable to the top elected official.
Furthermore, I think we can understand Justice Thomas’s refusal to accept that the President was somehow “appointed”—In other words, there are “other rules” for presidential appointments. We think Thomas would agree with the president not appointment; On the contrary, the President is elected by voters. By contrast, in Article 3 litigation, some argue that the president is appointment, rather than being elected. But this argument quickly faded from our collective view.
fourthwe wrote above that Thomas only agreed part Our reading of the reasons for appointment. Thomas said there may be other appointments of “officials of the United States” not covered by Article II, Section 2, which includes the appointments clause. Our interpretation of the text differs from that of Justice Thomas. In our opinion, this sentence “Not otherwise specified herein” is empty collection. There are no “United States official” positions to be filled by other mechanisms other than Article 2(a) and the Appointments Clause. In contrast, the language “not otherwise specified” tells the reader that there are No “Officials of the United States” as defined elsewhere. All “officials of the United States” are defined in Article 2, Section 2.Apart from For appointments not otherwise provided for in this Agreement,” But it doesn’t say that. Instead, it says: “Appointments not otherwise provided for herein” tells readers that the second section 2 process is the only means to fill the position of “U.S. official.”
Thomas does not tell us what other appointments of officials might have been provided for elsewhere in the Constitution. We understand that his language excludes the president, vice president, speaker and president pro tempore, since none of those positions were created “by law.” So one wonders: Where does Justice Thomas have his mind? Perhaps Justice Thomas will address this specific issue in a future opinion. We believe that “officers of the United States,” whether principal or subordinate, must be defined by law and must be appointed in accordance with the procedures set forth in Article II, Section 2. Not required by statute, it cannot be a “U.S. official.”
Trump v. United States No appointment terms challenge was filed. But the issue is pending in the U.S. District Court for the Southern District of Florida.
