This article is the next installment of Legislative Officer Succession: Part I (posted on BEPRESS and on SSRN).

This section distinguishes "officers under the authority of the United States" from other classes of constitutional and statutory officers. It also responds to some of the Amars' structural arguments in defense of their "officer" (as used in the Succession Clause) equals "officer of the United States" (as used in the Appointments Clause) position.

The Amars state:

"It might be argued that an intermediate reading of the Succession Clause is possible -- one that insists that a successor be a federal, rather than state, Officer, without requiring the successor to be an 'Officer of the United States.' Though analytically possible, this superfine distinction lacks strong textual support, and runs up against important historical and structural objections."

Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 STAN. L. REV. 113, 117 n.26 (1995). The Amars put forward no textual response to the position they reject: they merely put forward a few (post-ratification) historical arguments and some structural arguments. Id.; see also Steven G. Calabresi, Response: The Political Question of Presidential Succession, 48 STAN. L. REV. 155, 159 n.24, 160 (1995) (where Professor Calabresi takes a similar position). Later in their paper, in a misplaced rhetorical gambit, the Amars ask:

"If an acting President, wielding the full and awesome executive power of the United States, is not an 'Officer of the United States,' what is he? And if he does not 'hold[] an[] Office under the United States,' U.S. CONST. art. I, 6, cl. 2 (Incompatibility Clause), it's hard to see why he must (or even can) take the Presidential oath of office, id. art. II, [§] 1, cl. 8 (Presidential Oath Clause), or how he could be 'removed from Office' via the impeachment process, id. art. II, [§] 4 (Impeachment Clause)."

Amar & Amar, supra note 1, at 136 n.143. These arguments appear to be textual, but they are, in fact, structural. In either event, they do deserve an answer.

The Impeachment Clause: "The President, Vice-President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Article II, Section 4 (emphasis added). The Amars' argument is that if a person, other than an officer of the United States, could succeed under the Succession Clause, then that person could not be reached by the Impeachment Clause, and that this structurally bad result is an argument in support of an identity between "officer" (in the Succession Clause) and "officer of the United States" (in the Impeachment Clause). Even assuming, as the Amars implicitly do, that acting Presidents are not Presidents for the purpose of the Impeachment Clause, the Amars (in my view) have stumbled here. Assuming, as the Amars suggest, that "officer" equals "officer of the United States," then military officers in the regular United States armed forces (but not the state militias) are within the eligible class of persons which might be statutorily designated to succeed the President and the Vice President under the Succession Clause. See Amar & Amar, supra note 1, at 114-115 (recognizing the validity of the military-civilian distinction in regard to "officers"). But military officers of the United States are exempted from the reach of the Impeachment Clause. Id.; cf. WAUGH, BRIDESHEAD, supra note 15, at 9 ("The history they taught [Hooper] had few battles in it but, instead, a profusion of detail about humane legislation . . . ."). So the disharmony between the two clauses might be normatively bad in some abstract modern structural sense, but it is a result that the plain text (i.e., the actual structure) of the Constitution clearly allows for, if not commands (should Congress choose to designate United States military officers under the Succession Clause). Thus, the Impeachment Clause supplies no support for the thesis that "officer" equals "officer of the United States."

Indeed, the text of the Impeachment Clause also undermines Professor Calabresi's position. See supra note 12. Professor Calabresi took the position that the President and the Vice President are "officers of the United States." Calabresi, supra note 1, at 159 n.24, 161 n.34. But if that were true, then the Impeachment Clause should have been drafted as: "The President, Vice-President and all other Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." The fact that "other" was not used immediately prior to "officers of the United States," in my view, indicates that the President and the Vice President are not officers of the United States. Admittedly, I am premising my position on a dog-didn't-bite type of argument, but such a position is reasonably appropriate where, as here, the "missing" text, i.e., the word "other," was known to the Founders, and it appears frequently throughout the Constitution and, even, in another place in the Impeachment Clause itself. See U.S. CONST. art. II, § 4 ("other high Crimes and Misdemeanors"); Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, 6 TEX. REV. LAW & POL. 13, 19 n.17 (2001) ("Throughout this article, the term 'civil officers' will be used as a catch-all including not just federal civil officers but also the President and Vice President. Technically this may be incorrect, as the Constitution distinguishes the President and Vice President from civil officers. Article II, [Section] 4 does not say "all other civil officers,' after all. The distinction appears to be that the President and Vice President are elected . . . .").

[May 2, 2011]