Scalia in 1974 OLC Opinion: “Officer” in Constitution “Invariably Refers to Someone Other than the President”

December 22nd, 2016

Relevant to the ongoing emoluments clause debate, Seth Barrett Tillman unearthed a 1974 OLC Opinion signed by none other than Assistant Attorney General Antonin Scalia, where the future Justice opines that “when the word ‘officer’ is used in the Constitution, it invariably refers to someone other than the President.”

Granted, in 2009 OLC opined that the emoluments clause “surely” applies to the President. As I noted in this post, that conclusory had no analysis of the text or history of the Constitution. But this position is not set in stone.

In 2012, Jack Maskell of the Congressional Research Service stated “The President and all federal officials are restricted by the Constitution, at Article I, Section 9, [C]lause 8.”

In an updated memo last month by Mr. Maskell, the relevant position changed to “the Foreign Emoluments Clause “might technically apply to the President.” This is a significant revision by CRS.

In a recent Brookings paper, Norman Eisen and Richard Painter, joined by Larry Tribe, disposed this argument in a footnote as “myopic and strained.”

It also has been suggested by one scholar that the Emoluments Clause did not cover elected, as opposed to appointed, federal office holders. See Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U. L. Rev. C. 180 (2013). But this idiosyncratic suggestion is at best supported by ambiguous founding-era historical materials, rests upon a strained and counterintuitive textual analysis, and is flatly inconsistent with the recognized purpose of the Clause and the overwhelming thrust of modern (and historical) Executive Branch practice. See, e.g., Zephyr Teachout, Gifts, Offices, and Corruption, 107 Nw. U. L. Rev. C. 30 (2012); Zephyr Teachout, Constitutional Purpose and the Anti-Corruption Principle, 108 Nw. U. L. Rev. C. 200 (2013). Ultimately, only the most myopic and strained focus on the least plausible version of originalism to the exclusion of every other interpretive tool, coupled with a series of highly doubtful conclusions from the historical record, would support the conclusion that the President is not subject to the strictures of the Emoluments Clause. That approach must be rejected.

This is a close question, without any judicial precedent, Tillman has strong arguments based on text and history. I don’t need to remind anyone that four Justices in Noel Canning were willing to hold that “the recess” of the Senate referred only to the break between sessions, and that all intra-seession recess appointments were void. Rather than being “myopic and strained” originalism, I referred to this analysis as originalism in the open fields.

In any event, CRS’s revision reflects the uncertainty of this issue. I am organizing a symposium on behalf of the South Texas Law Review on the emoluments clause. Stay tuned for more information.