The Unconstitutional Ramifications of the Respondents’ Theory in Trump v. Anderson: A Historical Examination

President, Vice President, Speaker of the House, and Senate President Pro Tempore may not adhere to the United States. The legislative officers are not “officers of the United States” because they are not appointed or commissioned by the President, nor are they subject to impeachment. Justice Scalia mistakenly claimed that congressional presiding officers are “officers of the United States.” The better view is that the Speaker and Senate President Pro Tempore are “officers” but not “officers of the United States” as that phrase is used in the Constitution. The Sinecure Clause, also known as the Ineligibility Clause, provides: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time.” U.S. Const. Art. I, § 6. As a threshold matter, this provision expressly contrasts between Senators and Representatives, who are elected, and “any civil Office[s] under the Authority of the United States,” which are appointed. The corpus linguistics study which purports to demonstrate that elected and appointed have the same meaning didn’t actually mention the one provision of the Constitution that uses both terms. We’ll come back to that point shortly. With the Sinecure Clause, a member of Congress cannot be “appointed” to a “civil Office under the Authority of the United States,” if Congress increased the compensation for that position during the member’s term. There is some argument that Senator Hugo Black was ineligible to be appointed to the Supreme Court because of this provision. In modern times, the Senate has employed the …