Biden Office of Legal Counsel Departs From Obama-Era opinions, and Reverts to Reagan-Era Opinions, on the Difference Between “Officer of the United States” and “Office under the United States.”
[This post is co-authored with Professor Seth Barrett Tillman]
In the waning days of the Biden presidency, there has been a flurry of new Executive Branch decisions with constitutional implications. President Biden determined that he had the power to pardon his son for any conceivable federal offense committed during the past decade. President Biden also “affirmed” that the proposed Twenty-Eighth Amendment is part of the Constitution, even though the Archivist of the United States has not certified it. President Biden has refused to take care that the TikTok ban is faithfully executed, even after the Supreme Court upheld the statute Biden himself signed into law. Who knows what else the final few hours will bring?
During this time, the Office of Legal Counsel (“OLC”) has also been busy. On January 16, 2025, OLC issued a new opinion signed by Assistant Attorney General Christopher C. Fonzone. It is titled “The Test for Determining ‘Officer’ Status Under the Appointments Clause.” (This opinion came only one day after the Department of Justice filed its Eleventh Circuit merits brief in defense of the federal qui tam statute.) Yes, even as the rest of the administration exits stage left, OLC is still thinking about what Justice Kagan derided as “officer stuff.” We realize that many readers are quite tired of our posts on this topic. But as long as the Executive Branch continues to opine on the “officer” issue, we will persist too.
A fulsome analysis of the opinion will wait for another time, including the analysis of the qui tam statute, and the line between officer and employee. Here, we want to focus on a single sentence in footnote one. (The most thought-provoking parts of OLC opinions tend to be reserved for footnotes.)
[W]e note that, although the Constitution makes several references to the term “office” or “officer” outside the Appointments Clause, this memorandum does not address whether or to what extent any such references should be read consistent with the term “Officer[] of the United States” in the Appointments Clause. See, e.g., Special Government Employee Serving as Paid Consultant to Saudi Company, 40 Op. O.L.C. 1, 4–5 (2016) (discussing the relationship between an “Office of Profit or Trust” under the Emoluments Clause and an “Officer” under the Appointments Clause).
Here, OLC seems to acknowledge there may be a difference between a position held by an “Officer of the United States,” who is appointed pursuant to the Appointments Clause, and an “Office of Profit or Trust under [the United States]” that is covered by the Foreign Emoluments Clause. If these two categories of positions were co-extensive, this footnote would not have been necessary. But OLC expressly stated that they are not resolving this issue, which implies that this question has not been settled by the federal courts or by prior Executive Branch guidance.
OLC didn’t have to say anything at all about this point. But OLC did. We suspect that the lawyers in OLC paid close attention to the 2023–2024 disqualification litigation based on Amendment XIV, Section 3. For example, during oral argument in Trump v. Anderson, Justice Go
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