Amicus Curiae Brief — Raymond J. Lucia, et al., Petitioners v. Securities and Exchange Commission
Supreme Court briefFeb 28, 2018
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No. 17-130
In the Supreme Court of the United States
__________
RAYMOND J. LUCIA
AND RAYMOND J. LUCIA COMPANIES, INC.
Petitioners,
v.
SECURITIES AND EXCHANGE COMMISSION
__________
On Writ of Certiorari to the
United States Court of Appeals for the D.C. Circuit
__________
BRIEF OF AMICI CURIAE
SCHOLARS OF CORPUS LINGUISTICS
__________
JAMES HEILPERN
Law & Corpus Linguistics
Fellow
BYU LAW SCHOOL
415 JRCB
Provo, UT 84602
GENE C. SCHAERR
Counsel of Record
MICHAEL T. WORLEY
SCHAERR | DUNCAN LLP
1717 K Street NW, Ste. 900
Washington, DC 20006
(202) 787-1060
gschaerr@schaerr-duncan.com
QUESTION PRESENTED
Whether administrative law judges of the Securities and Exchange Commission are Officers of the
United States within the meaning of the Appointments Clause.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED .......................................... i
TABLE OF CONTENTS ............................................. ii
TABLE OF AUTHORITIES ...................................... iii
INTRODUCTION AND INTERESTS OF AMICI ..... 1
STATEMENT .............................................................. 3
SUMMARY OF ARGUMENT .................................... 7
ARGUMENT ............................................................. 10
I. The Court should consider empirical evidence
derived from corpus linguistics to inform its
decision on the meaning of the Appointments
Clause. ................................................................. 10
II. Empirical evidence from the Founding era shows
that “Officers of the United States” was not a
legal term of art. .................................................. 18
III.Empirical evidence derived from corpus
linguistics demonstrates that the original public
meaning of “officer” would have encompassed an
ALJ. ...................................................................... 21
IV. Empirical evidence derived from corpus
linguistics demonstrates that the ordinary
meaning of a public “officer” today includes
ALJs. .................................................................... 29
CONCLUSION.......................................................... 36
APPENDIX: List of Amici ........................................ 1a
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Bandimere v. SEC,
844 F.3d 1168 (10th Cir. 2016), en banc denied,
855 F.3d 1128 .....................................................3, 27
Buckley v. Valeo,
424 U.S. 1 (1976) ..................................................... 8
District of Columbia v. Heller,
554 U.S. 570 (2008) .........................................10, 13
Ex parte Hennen,
38 U.S. 225 (1839) ................................................ 27
FCC v. AT&T, Inc.,
562 U.S. 397 (2011) .............................................. 14
Fire Ins. Exchange v. Oltmanns,
___ P.3d ___, 2017 UT 81 (Utah 2017) ................ 15
In re Adoption of Baby E.Z.,
266 P.3d 702 (Utah 2011) .................................... 14
Landry v. FDIC,
204 F.3d 1125 (D.C. Cir. 2000) .............................. 2
Lucia v. SEC,
832 F.3d 277 (D.C. Cir. 2016) ............................ 5, 6
Muscarello v. United States,
524 U.S. 125 (1998) .............................................. 13
Myers v. United States,
272 U.S. 52 (1926) ................................................ 27
People v. Harris,
885 N.W.2d 832 (Mich. 2016)............................... 15
iv
Samuels, Kramer & Co. v. C.I.R.,
930 F.2d 975 (2d Cir. 1991).................................. 27
State v. Canton,
308 P.3d 517 (Utah 2013) .................................... 15
State v. Rasabout,
356 P.3d 1258 (Utah 2015) ................................... 13
Trop v. Dulles,
356 U.S. 86 (1958) ................................................. 10
Tucker v. Comm’r,
676 F.3d 1129 (D.C. Cir. 2012) .............................. 5
U.S. ex. rel. Kelly v. Boeing Co.,
9 F.3d 743 (9th Cir. 1993) .................................... 27
United States v. Costello,
666 F.3d 1040 (7th Cir. 2012) .............................. 13
United States v. Germaine,
99 U.S. 508 (1879) ................................................ 27
United States v. Sprague,
282 U.S. 716 (1931) .............................................. 10
Statutes
5 U.S.C. 1302 .............................................................. 3
Act of Apr. 10, 1790, ch. 7, 1 Stat. 112 ..................... 24
Act of Apr. 12, 1792, ch. 20, 2 Stat. 252 ................1, 23
Act of Aug. 4, 1790, ch 35, 1 Stat. 175 ..................... 24
Act of Dec. 23, 1791, ch. 3, 2 Stat. 226 ..................... 24
Act of Feb. 12, 1793, ch. 6, 2 Stat. 332 ..................... 24
Act of Feb. 25, 1791, ch. 10, 1 Stat. 192 ................... 24
Act of July 11, 1798, ch. 71, 5 Stat. 591 ................... 24
Act of July 16, 1798, ch. 81, 5 Stat. 608 ..................... 1
v
Act of July 31, 1789, ch. 5, 1 Stat. 37 ....................... 23
Act of June 15, 1798, ch. 54, 5 Stat. 567 .............24, 25
Act of June 9, 1794, ch. 61, 3 Stat. 394 .................... 24
Act of Mar. 14, 1794, ch. 6, 3 Stat. 343 .................... 24
Act of Mar. 19, 1798, ch. 18, 5 Stat. 542 .................. 19
Act of Mar. 2, 1799, ch. 22, 5 Stat. 696 .................... 25
Act of Mar. 2, 1799, ch. 27, 5 Stat. 721 .................... 25
Act of Mar. 2, 1799, ch. 33, 5 Stat. 728 ...................... 1
Act of Mar. 26, 1794, ch. 2, 3 Stat. 400 .................... 24
Act of Mar. 3, 1791, ch. 15, 1 Stat. 202 .................... 24
Act of Mar. 3, 1791, ch. 15, 1 Stat. 203–204 ............ 24
Act of Mar. 3, 1791, ch. 18, 1 Stat. 215 .................... 25
Act of Mar. 5, 1792, ch. 9, 2 Stat. 241 ...................... 25
Act of May 22, 1794, ch. 35, 3 Stat. 370 ................... 24
American Innovation and Competitiveness Act, Pub.
L. No. 114-329, § 604, 130 Stat. 2969, 3037 (2017) . 33
Other Authorities
Allison Brown, Counting Farmers Markets, 91 Geog.
Rev. 655 (Oct. 2001) .............................................. 32
An Anti-Federalist View of the Appointing Power
Under the Constitution (Federal Farmer XIII), in
The Anti-Federalist Papers .................................. 26
Arthur Ponsonby, The King’s English, The Baltimore
Sun, M15 (March 18, 1928). ............................16, 17
vi
Barton Beebe & Jeanne C. Fromer, Are We Running
Out of Trademarks? An Empirical Study of
Trademark Depletion & Congestion, 131 Harv. L.
Rev. 945 (2018) ...................................................... 15
Brief for Open Government Project as Amicus
Curiae, FCC v. AT&T, 562 U.S. 397 (2011) ......... 12
Brutus, Federal Taxation and the Doctrine of Implied
Powers (Part I) (1787), in The Anti-Federalist
Papers .................................................................... 26
Carlos M. Duarte, Will the Oceans Help Feed
Humanity?, 59 Bioscience 967 (2009)................... 33
Christopher N. Osher, Denver Inmate Abuse Case
Brings Up Old Questions About Depty Conduct,
Denver Post (Apr. 27, 2016, 4:53 AM) .................. 32
Corpus of Contemporary American English ........9, 29
Corpus of Founding Era American English, BYU
Law Corpora .......................................................... 18
D. Gordon Smith & Cynthia A. Williams, Business
Organizations: Cases, Problems, and Case Studies
(3d ed. 2012) .......................................................... 30
David Holmstrom, A Summer Camp Where
Community Service is Key, Christian Science
Monitor (Aug. 16, 1994) ........................................ 31
Dep’t of Defense, 2016 Demographics Report
(2016) ..................................................................... 33
Douglas Biber et. al., Corpus Linguistics:
Investigating Language Structure and Use
(1998) ..................................................................... 13
Elgin Community Service Officer Charged with Theft
of Explorer Funds, Chicago Tribune (Jan. 4,
2016) ...................................................................... 32
vii
Elizabeth MacDonald, Six Ways to Survive an IRS
Audit, Buffalo News (Sept. 11, 1994) ................... 31
Hugh H. Brackenridge, Incidents of Insurrection in
the Western Parts of Pennsylvania, in the Year
1794 (1795) ............................................................ 21
J. Heilemann et. al., Uncle Sam Doesn’t Want You,
22 Wash. Monthly 38 (Dec. 1990) ......................... 32
James Cleith Phillips & Jesse Egbert, Advancing
Law & Corpus Linguistics, 2018 B.Y.U. L. Rev.
(forthcoming) ......................................................... 11
James Cleith Phillips, et. al., Investigating the
Original Meaning of 'Officers of the United States'
with the Corpus of Founding-Era of American
English ................................................................... 11
James Cleith Phillips & Sara White, The Meaning of
the Three Emoluments Clauses in the U.S.
Constitution, ___ S. Tex. L. Rev. (forthcoming
2018) ...................................................................... 12
Jennifer L. Mascott, Who Are “Officers of the United
States”?, 70 Stan. L. Rev. 443 (2018), ............ passim
John W. Welch et. al., The Preamble’s Principal Place
in Constitutional Law, 91 S. Cal. L. Rev.
(forthcoming 2018) ............................................... 16
Kenneth R. Timmerman, Close-out Sale at
Commerce, 28 Am. Spectator 36 (Aug. 1995) ....... 32
Lawrence Solan et. al., False Consensus Bias in
Contract Interpretation, 108 Colum. L. Rev. 1268
(2001) ..................................................................... 13
Lawrence Solan & Tammy Gales, Corpus Linguistics
as a Tool in Legal Interpretation, 2018 B.Y.U. L.
Rev. ___ (forthcoming 2018).................................. 27
viii
Letter from Abishai Thomas to Alexander Hamilton
(June 14, 1792), in XI The Papers of Alexander
Hamilton (Harold C. Syrett ed., Colum. Univ.
Press 1966) ............................................................ 21
Letter from Alexander Hamilton to Robert Purviance
(August 22, 1794), in XVII The Papers of
Alexander Hamilton (Harold C. Syrett ed., Colum.
Univ. Press 1972) .................................................. 20
Lives Could Have Been Saved in Benghazi, Real
Clear Politics Video (Sept. 8, 2013) ...................... 31
Melissa Block, Analysis: Lester Crawford officially
named head of the FDA, NPR: All Things
Considered (Feb. 14, 2005) ................................... 31
Noncommissioned officer, Black’s Law Dictionary
(10th ed. 2014) ....................................................... 33
Office of the Chief Technology Officer, Office of
Science and Technology Policy ............................. 34
Part I―Survival of the Wildest: Stopping Poachers in
the Act, CBS 48 Hours (Mar. 11, 1992) ................ 31
Retired Marine Col. James C. Magee, 77, Dies,
Washington Post (Dec. 19, 1990) .......................... 31
Professor X, In the Basement of the Ivory Tower,
Atlantic (June 2008).............................................. 32
Richard Berman, A Liberal Dose of State Ballot
Measures, Wash. Times (Nov. 7, 2016)................. 32
Robert O’Harrow Jr. et. al., NSA Leaks Puts Focus on
Intelligence Apparatus’s Reliance on Outside
Contractors, Wash. Post (June 10, 2013) ............. 31
Robin J. Arzt et al., Advancing the Judicial
Independence and Efficiency of the Administrative
Judiciary: A Report to the President-Elect of the
ix
United States, 29 J. Nat'l Ass'n Admin. L.
Judiciary 93 (2009).................................................. 3
Ross B. MacDonals et. al., The Politics of Victimhood,
60 J. of Int’l Affairs 173 (2006) ............................. 32
Stephen Breyer, Active Liberty: Interpreting Our
Democratic Constitution (2005)............................ 10
Stephen C. Mouritsen, The Dictionary is not a
Fortress: Definitional Fallacies and a CorpusBased Approach to Plain Meaning, 2010 B.Y.U L.
Rev. 1915 .............................................................. 11
Steve Inskeep, The Perfection of Character, NPR
(Oct. 23, 2006) ....................................................... 31
The Federalist No. 84 (Alexander Hamilton) .......... 27
Thomas R. Lee & Stephen C. Mouritsen, Judging
Ordinary Meaning, 127 Yale L.J. 788 (2018) .. 1, 10,
13, 16
Thomas R. Lee & James Cleith Phillips , Data-driven
Originalism ........................................................... 17
Truant Officers Attend to Schools’ Needs, Chicago
Sun-Times (Sept. 11, 1992) ................................... 32
U.S. Dep’t of Defense, Enlisted Rank Insignias ...... 33
U.S. Dep’t of Defense, Officer Rank Insignias ........ 33
U.S. Security and Exchange Commission, Office of
Administrative Law Judges ...............................4, 28
Vanessa K. Burrows, Cong. Res. Serv.,
Administrative Law Judges: An Overview (2010) . 3
Regulations
5 C.F.R. § 930.201 ....................................................... 3
Constitutional Provisions
x
U.S. Const., art. II, § 2 ................................................ 3
U.S. Const. art. IV, § 4 .............................................. 16
INTRODUCTION AND INTERESTS OF AMICI 1
In 1798, Thomas Dunn served as Assistant Doorkeeper of the House of Representatives, charged with,
among other things, keeping the House’s fireplace
stocked with firewood and doing standard janitorial
work. For these services, Congress paid him “four
hundred and fifty dollars per annum.” 2 And because
of these ministerial services, Congress called him an
“officer of the House of Representatives.” Act of March
2, 1799, ch. 33, 5 Stat. 728 (emphasis added). This
historical example of the founding-era usage of “officer” is merely one of many data points for the Court
to consider in answering the important question presented in this case—the meaning of the phrase “officer
of the United States.”
Amici (listed in the Appendix) are scholars of a developing methodology for answering such questions in
a systematic, rigorous manner—a methodology known
as “corpus linguistics.” As Utah Supreme Court Justice Thomas R. Lee puts it,, “corpus linguistics is an
empirical approach to the study of language that involves large, electronic databases,” which are used to
“draw inferences about language from data gleaned
1 No one other than amici and their counsel authored any part of
this brief or made a monetary contribution to fund its preparation or submission. All parties have consented to its filing in communications on file with the Clerk.
2 Act of April 12, 1792, ch. 20, 2 Stat. 252 . See also Act of July
16, 1798, ch. 81, 5 Stat. 608 (appointing Dunn).
2
from real-world language in its natural habitat―in
books, magazines, newspapers, and even transcripts
of spoken language.” 3 Because judges―like linguists
and lexicographers―are interested in the “original
public meaning” of historic texts and the “ordinary
meaning” of modern texts, amici believe these databases can be invaluable in resolving difficult questions
of constitutional and statutory interpretation.
Empirical evidence derived from historical databases demonstrates that Dunn’s status as a federal officer―despite having little authority over anything
but the Congressional fireplace―was not an aberration, but rather emblematic of the original understanding of “Officers of the United States.” Moreover,
linguistic data derived from a modern linguistic database reveals that our contemporary understanding of
the word “officer” is far more expansive than some
might expect―at least in the public context―encompassing relatively low-level employees.
Thus far, this Court’s decisions have always reflected this broad understanding of “Officers of the
United States.” In Landry v. FDIC, 204 F.3d 1125, 340
(D.C. Cir. 2000), however, the D.C. Circuit fashioned
a balancing test that does not adequately account for
this Court’s precedent, much less the available linguistic evidence. Because the Landry test―and similar tests from other circuits―have no grounding in
linguistic fact, amici believe they should be overturned in favor of a more capacious understanding of
the term “officer” and, hence, of the phrase “officer of
the United States.”
3 Lee & Mouritsen, at 788.
3
STATEMENT
The Constitution provides that the President “by
and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and
Consuls, Judges of the supreme Court, and all other
Officers of the United States.” U.S. Const., art. II, § 2.
Nevertheless, “Congress may by Law vest the Appointment of such inferior Officers . . . in the President
alone, in the Courts of Law, or in the Heads of Department.” Id. Thus, an “Officer of the United States” may
be appointed by any of three entities: the President
(with or without Senate confirmation), the courts, or a
department head.
1. However, administrative law judges are not appointed by the President, courts of law, or department
heads. Rather, they are hired following a “merit-selection process” that is “administered by the Office of
Personnel Management [OPM].” Bandimere v. SEC,
855 F.3d 1128, 1132 (10th Cir. 2017), en banc denied,
855 F.3d 1128 (Lucero, J., dissenting from denial of en
banc review) (citing 5 U.S.C. 1302; 5 C.F.R. § 930.201).
OPM requires a candidate to be a “licensed attorney[]
with at least seven years of litigation experience” and
to take a test that it administers. Bandimere v. SEC,
844 F.3d 1168, 1176-1177 & n.11 (10th Cir. 2016), 4 en
banc denied, 855 F.3d 1128. Following the test’s administration, each candidate is ranked according to
his or her performance, and the Chief ALJ can then
For this proposition, the opinion cites Vanessa K. Burrows,
Cong. Res. Serv., Administrative Law Judges: An Overview, at 2
(2010), https://perma.cc/T8YY-EE7F; Robin J. Arzt et al., Advancing the Judicial Independence and Efficiency of the Administrative Judiciary: A Report to the President-Elect of the United
States, 29 J. Nat'l Ass'n Admin. L. Judiciary 93, 101 (2009).
4
4
hire any of the top three performers. Id. Once hired,
ALJs are subject to termination only for cause after
review by the Merit System Protection Board. Id.
Their responsibilities include “conducting public hearings in a manner similar to federal bench trials,” “presiding at and regulating the course of th[ose]
hearings,” and “setting filling deadlines, issuing subpoenas, holding prehearing conferences, and ruling on
motions.” 5
2. Petitioner Raymond J. Lucia is an investor who
has hosted several free seminars on investing. Pet.
App. 34a; 127a–129a. At these seminars, Petitioner
would use a slideshow to show the potential of following a retirement plan that he called “Buckets of
Money.” Pet. App. 23a; 127a–129a. The slideshow presented multiple “hypothetical” examples of how successful a portfolio following his plan could be.
Petitioner did not, however, only call his examples
“hypothetical.” Instead, he stressed both orally and in
writing that they were based on many different assumptions, including assumptions that the history of
the market was indicative of its future. Pet. App. 24a–
29a; 43a n.10; 45a n.14; 76a–77a.
3. These disclosures, however, were insufficient to
protect him from the Securities and Exchange Commission (SEC). In 2012, the SEC charged him with
violating the Investment Advisors Act of 1940 and its
subsequent interpretations of the Act. Pet. App. 7a–
8a. The SEC chose to avoid federal court, and an administrative law judge presided over a trial-like proceeding that included all of the elements of a typical
5 U.S. Security and Exchange Commission, Office of Administra-
tive Law Judges, https://www.sec.gov/alj.
5
trial. Pet. App. 239a. Although the case was eventually remanded for further factual findings, the ALJ
eventually found Lucia’s presentations misleading because he used “‘backtest’ —a term with no statutory
or regulatory definition”—to describe his investment
plan. Pet. Br. 6. Petitioner described the “backtest” as
the combination of “historical data” and certain “assumptions for other variables, such as inflation and
real-estate rates of return.” Pet. Br. 5. Because of the
supposedly misleading nature of the term, the ALJ
“barred Mr. Lucia from working as an investment advisor for the rest of his life, revoked his company’s registration, and assessed civil penalties.” Pet. Br. 6.
Lucia sought review from the full Commission. He
challenged the ALJ’s decision on the merits and also
argued that the ALJ’s office violated the Appointments Clause. Pet. App. 38a–40a. The Commission
sustained the ALJ’s finding and concluded that SEC
ALJs are “not subject to the Appointments Clause.”
Pet. App. 66a-69a; 86a. It reasoned that SEC ALJs are
not inferior officers because their decisions are not “effective and final” until the SEC itself files a “finality
order.” Pet. App. 90a.
4. A panel of the D.C. Circuit, relying on Landry
v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000), held that the
SEC ALJ was an employee but not an “inferior officer.” Lucia v. SEC, 832 F.3d 277, 289 (D.C. Cir.
2016), Pet. App. 21a. Landry discussed three “criteria”
for courts to consider when distinguishing between inferior officers and employees: "(1) the significance of
the matters resolved by the officials, (2) the discretion
they exercise in reaching their decisions, and (3) the
finality of those decisions." Tucker v. Comm’r, 676
F.3d 1129, 1133 (D.C. Cir. 2012).
6
Petitioner showed that the SEC ALJ’s decision,
while not binding on the Commission, should not be
considered a mere recommendation because, in practice, the Commission’s eventual decision was only a
“ministerial formality.” Lucia, 832 F.3d at 286. The
court recognized that, although under the organic
statute “the Commission could have chosen to adopt
regulations whereby an ALJ’s initial decision would be
deemed a final decision of the Commission,” it had not.
Id. (italics in original). Thus, under the current regulatory scheme, the SEC ALJ’s decision “becomes final
when, and only when, the Commission issues the finality order, and not before then.” Id. Thus, the court
held, the Commission’s ALJs neither have been delegated sovereign authority to act independently of the
Commission nor, by other means established by Congress, do they have the power to bind third parties, or
the government itself, for the public benefit.” Id.
While recognizing that “Landry … did not resolve
the constitutional status of ALJs for all agencies,” the
court below held that Petitioner “failed to demonstrate” that SEC ALJs “perform … duties” sufficient
to render them inferior officers. Id. at 289. For this
reason, the court was unwilling to “cast aside [the]
carefully devised scheme stablished after years of legislative consideration and agency implementation”
and held that SEC ALJs were mere employees. Id.
The D.C. Circuit reheard the case en banc, agreeing to resolve the question of whether the ALJ was an
inferior officer and therefore subject to the Appointments Clause. Pet. Br. 9. The en banc court convened
on May 24, 2017. Pet. Br. 9. Equally divided, the en
banc court issued a per curiam opinion denying the
petition for review. Pet. App. 1a–2a.
7
SUMMARY OF ARGUMENT
Petitioners argue that the SEC’s administrative
law judges should be considered “Officers of the
United States” under this Court’s precedent, including
Buckley v. Valeo, 424 U.S. 1 (1976). Petitioners’ reading of those precedents is strongly supported by a technique called corpus linguistics―the use of
electronically-searchable linguistic databases to generate empirical evidence about the meaning of words
within in a particular community at a particular time.
Application of that methodology shows that the D.C.
Circuit’s Landry test――and similar tests in other circuits――reflects neither the original nor modern
meaning of the phrase “Officer of the United States.”
The Court should reject the Landry test in favor of a
more capacious understanding of the term.
I. Empirical evidence demonstrates that “Officer of
the United States” was not a legal term of art, that its
original public meaning was much more expansive
than the D.C. Circuit’s case law affords, and that it
referred to almost any federal employee. That evidence is principally derived from an analysis of the
Corpus of Founding Era American English
(COFEA)—a huge database containing approximately
150,000 documents from the Revolutionary War era—
and a smaller database, created specifically for this
case, consisting of all the Statutes-at-Large passed by
the first Five Congresses between 1789 and 1799.
Among others, these databases reveal references to
the following federal “officers”:
•
The Assistant Doorkeeper of the House of
Representatives;
•
The Melter and Refiner of the U.S. Mint;
8
•
The Deputy Apothecary of the U.S. Army;
and
•
The Purveyor of Public Supplies.
If this Court were to apply the original public
meaning of the phrase “Officers of the United
States,” it would almost certainly extend to administrative law judges.
II. Empirical evidence also demonstrates that
modern usage of the word “officer”—at least within
the public sphere—continues to track the much more
expansive original public meaning. To conduct the
modern linguistic analysis, amici relied on the Corpus
of Contemporary American English (COCA), a 560+
million word database capturing actual usages from
1990 to 2017. This corpus search revealed a number of
low-level government employees referred to as “officers” that would nonetheless fail the Landry test:
•
Archaeological preservation Officers (National Parks);
•
Foreign Service Officers (State Department);
•
Problem Resolution Officers (IRS);
•
Safety Officers (FDA); and
•
Wildlife Officers (National Park).
Based on this evidence, it is clear that the circuit
courts’ understanding of the “significant authority”
test is also at odds with modern usage of “officer.” If
the court applied today’s ordinary meaning of that
word, it would easily extend to administrative law
judges because, although their decisions may not be
9
final, they exercise a non-negligible degree of authority.
10
ARGUMENT
I.
The Court should consider empirical evidence derived from corpus linguistics to inform its decision on the meaning of the
Appointments Clause.
This Court has stated that “[t]he Constitution was
written to be understood by the voters; its words and
phrases were used in their normal and ordinary . . .
meaning.” United States v. Sprague, 282 U.S. 716, 731
(1931). At times, the court has indicated that this
means constitutional provisions should be interpreted
as they were understood by “ordinary citizens of the
founding generation.” District of Columbia v. Heller,
554 U.S. 570, 577 (2008). Other times, the Court has
relied on a modern interpretation of the text, stating
that the meaning of the Constitution is not “static,”
but rather informed by “evolving standards of decency.” Trop v. Dulles, 356 U.S. 86, 100–101 (1958);
see also Stephen Breyer, Active Liberty: Interpreting
Our Democratic Constitution 7–8 (2005). Regardless
of its approach, the Court would benefit from the use
of empirical data produced by corpus linguistic tools.
1. Corpus linguistics investigates real-language
use and function by analyzing huge electronic databases of naturally-occurring texts. Thomas R. Lee &
Stephen C. Mouritsen, Judging Ordinary Meaning,
127 Yale L.J. 788 (hereinafter Lee & Mouritsen)(2018).
These databases have an esoteric
name—corpora (the plural of corpus)—but are simply
digitally-searchable collections of real-world sources:
books, newspapers, speeches, scholarly articles, television transcripts, etc. Id. at 33. The sources are said
to occur “naturally” because they “were not elicited for
the purpose of the study. That is . . . no one ask[ed] the
11
speakers or writers whose words are represented in
the corpus to speak or write for the purpose of subjecting their words to linguistic scrutiny. Instead, the architect of the corpus assemble[d] her collection of
speech and writing samples after the fact.” Stephen C.
Mouritsen, The Dictionary is not a Fortress: Definitional Fallacies and a Corpus-Based Approach to
Plain Meaning, 2010 B.Y.U L. Rev. 1915, 1954―1955.
Although corpus linguists use many different tools,
when interpreting a historical text scholars often follow the following procedure:
•
Identify a corpus that corresponds with the
speech community and time period she
wishes to investigate;
•
Search for the relevant search term using a
“Keyword in Context” (KWIC) feature,
which finds and displays in context every instance of the queried term in the database;
•
Generate a random (and thus likely representative) sample of the returned KWIC
lines large enough to generate statistically
significant effects; and
•
Code each KWIC line in the sample for its
relevant word sense, relying on the system’s
expanded context feature when necessary. 6
6 See, e.g., James Cleith Phillips & Jesse Egbert, Advancing Law
& Corpus Linguistics, 2018 B.Y.U. L. Rev. (forthcoming), available
at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3057415.
12
This approach can produce useful quantitative and
qualitative data about the real-world usage of the
relevant term.
It bears emphasis, however, that the sources contained in the corpus must be pulled from the relevant
speech community being investigated. James Cleith
Phillips & Sara White, The Meaning of the Three
Emoluments Clauses in the U.S. Constitution, ___ S.
Tex. L. Rev. (forthcoming 2018), available at
https://ssrn.com/abstract=3036938. A corpus composed entirely of the transcripts from Argentinian
telenovelas cannot provide relevant data for investigating the speech patterns of American diplomats.
Likewise, a 16th century Shakespearean corpus will
likely be unhelpful in clarifying the meaning of modern legal texts. But a corpus that is contextually relevant “is like Lexis on steroids.” Brief for Open
Government Project as Amicus Curiae at 14, FCC v.
AT&T Inc., 562 U.S. 397 (2011). Searching it for a
particular term produces a set of real-world examples
(called “KWIC” or “concordance lines”) drawn from the
database and showing how that term has actually
been used within the community in question.
Of course, not all of the examples produced by the
corpus will be helpful. Like Google or Westlaw, a corpus search will sometimes identify sources in which
the queried term was used in a very different context.
Other times the usage will be vague or ambiguous.
But analyzing a random sample of concordance lines,
as a whole, produces a broader empirical picture, defining the range of potential meanings a word or
phrase may take and often revealing trends and patterns that would have otherwise remained unnoticed.
13
2. This approach should feel familiar to most
judges. Courts search for real-world examples of linguistic usage to help make sense of ambiguous legal
passages all the time. For example, in Heller, this
Court considered concrete examples mined from
“founding era sources” of how the phrases “keep arms”
and “bear arms” were actually used by contemporaries
of the Constitution. 554 U.S. at 581-592.
The problem is that until now “a judge has [had]
no way of determining whether she is correct in her
assessment that her own interpretation is widely
shared.” Lawrence Solan, et. al., False Consensus Bias
in Contract Interpretation, 108 Colum. L. Rev. 1268,
1273 (2001). Linguists have long noted the fallibility
of human linguistic intuition. Because “humans tend
to notice unusual occurrences [of words] more than
typical ones,” judges run the risk of over-crediting the
frequency of obscure word senses. Douglas Biber et.
al., Corpus Linguistics: Investigating Language
Structure and Use 3 (1998).
To combat this, some judges have turned to electronic databases to help generate more examples of
real-world usage than they can think of on their own,
as a way to check their linguistic intuition. This Court
did so in Muscarello v. United States, “survey[ing]
modern press usage [of the word “carry”] by searching
computerized newspaper databases.” 524 U.S. 125,
129-130 (1998). Likewise, in United States v. Costello,
Judge Posner performed a Google search “of several
terms in which the word ‘harboring’ appears” on the
“supposition that the number of hits per term is a
rough index of the frequency of its use.” 666 F.3d 1040,
1044 (7th Cir. 2012). While these approaches had
14
some methodological shortcomings, 7 they are laudable
for their efforts to check the court’s linguistic assumptions.
Corpus linguistics simply empowers the judge to do
this in a systematic―and more scientific―fashion: systematic because it follows a set methodology and relies
on principles of statistical significance and random
samples; and scientific because it is both falsifiable
and repeatable: subsequent researchers can test the
validity of any dataset by performing the corpus
search again on their own. This approach does not
supplant the judge as the ultimate decision maker. It
simply furnishes the judge with more and better data
to help inform her ultimate decision.
3. Over the last few years, some judges have cautiously begun applying corpus linguistic tools and
techniques to issues of statutory interpretation. For
example, in 2011 Justice Ginsburg cited corpus linguistics data during oral arguments in FCC v. AT&T,
Inc., 562 U.S. 397 (2011). See Transcript of Oral Argument in No. 09-1279 at 37. The case boiled down to
whether the word “personal” as used in the Freedom
of Information Act was merely the ‘adjectival form’ “of
the noun person” so that the phrase “personal privacy”
encompassed corporate privacy. See 562 U.S. at 406.
While the opinion did not cite corpus linguistics directly, its reasoning largely tracked the amicus brief
by the Project on Government Oversight, which did.
7 See, e.g. Muscarello, 524 U.S. at 129 (Breyer, J.) (describing his
own empirical approach as “crude[]”); State v. Rasabout, 356 P.3d
1258, 1280 (Utah 2015) (Lee, J. concurring) (critiquing Judge
Posner’s reliance on Google searches); Lee & Mouritsen, at 812813 (same).
15
That same year, Justice Lee of the Utah Supreme
Court became the first judge in the country to expressly use corpus linguistics in an opinion. In re
Adoption of Baby E.Z., 266 P.3d 702 (Utah 2011) (Lee,
J. concurring). Relying on empirical data drawn from
Brigham Young University’s Corpus of Contemporary
American English (COCA), 8 he concluded that the
term “custody determination” as used in the federal
Parental Kidnapping Prevention Act did not extend to
adoption proceedings because “the most common family-law sense of the word ‘custody’ occurs in the setting
of a divorce.” Id. at 724.
Since then, a number of state supreme court justices have followed suit. 9 For example, the majority
and dissent in People v. Harris, a Michigan Supreme
Court case in which both the majority and dissent relied on the COCA to analyze whether someone had
been forced to make an involuntary statement if the
“information” he provided law enforcement officers
was actually false. 885 N.W.2d 832. 10
Corpus of Contemporary American English, https://corpus.byu.edu/coca/.
8
9 See, e.g., Fire Ins. Exchange v. Oltmanns, ―___ P.3d ―___ (Utah
2017), 2017 UT 81 ¶57 n.9 (Durham, J. concurring) (“[Corpus linguistic] tools for empirical analysis are readily available for lawyers and should be used when appropriate”); cf. State v. Canton,
308 P.3d 517 (interpreting the phrase “out of the state” based on
an analysis of the use of that phrase in newspaper articles compiled through a Google News search)
10 Corpus linguistics has also been used to settle trademark dis-
putes at the trial level for many years. See Barton Beebe &
Jeanne C. Fromer, Are We Running Out of Trademarks? An Empirical Study of Trademark Depletion & Congestion, 131 Harv. L.
Rev. 945 (2018).
16
4. Thus far, all these cases have involved the interpretation of modern statutes and have therefore relied on data derived from modern English corpora
such as the COCA. But these tools are less helpful for
cases involving constitutional interpretation, at least
to the extent the Court is interested in discovering the
meaning understood by “ordinary citizens of the
founding generation.” If one is interested in the original public meaning, a modern corpus is just as unhelpful as a corpus derived from sources from the wrong
community―it fails to account for subsequent changes
in language patterns. As Justice Lee has explained,
“This is the problem of linguistic drift―the notion that
language usage and meaning shifts over time.”
Thomas R. Lee & James Cleith Phillips, Data-Driven
Originalism, available at
http://ssrn.com/abstract=3036206 [hereinafter Lee & Phillips] .
Sometimes these changes can be quite dramatic,
and occur for no apparent reason. Consider the following (possibly apocryphal) account of the rebuilding
of St. Paul’s Cathedral in 1675, taken from a linguistics column published during the early twentieth century:
When architects’ drawings for the rebuilding of
St. Paul’s Cathedral after the fire were submitted, Sir Christopher Wren was told that his design had been chosen because it was “at the
same time the most awful and the most artificial.” A modern architect would hardly think
such a verdict complimentary. Far from being
disparagement, it was the highest praise. “Awful” correctly meant inspiring awe, and “artificial” designed with art.
17
Arthur Ponsonby, The King’s English, The Baltimore
Sun, M15 (March 18, 1928); see also John W. Welch,
et. al. The Preamble’s Principal Place in Constitutional Law, 91 S. Cal. L. Rev. (forthcoming 2018),
available at http://ssrn.com/abstract=3131207. Such
shifts can—and have―occurred with words and
phrases contained in the Constitution. For example,
Article IV, Section 4 states that “[t]he United States .
. . shall protect each of [the states] . . . against domestic violence.” At the time of the founding, “domestic
violence” referred to civil unrest and public upheaval
rather than the abuse of one’s spouse or children as it
does today. Lee & Phillips at 4 .
5. Until recently, no eighteenth century American
English corpus existed. But in late 2017, Brigham
Young University Law School launched a beta version
of the Corpus of Founding Era American English
(“COFEA”). COFEA currently contains approximately
150 million words. The texts were mined from Evans
Early American Imprint Series (featuring books, pamphlets, and broadsides covering a broad array of subjects), Hein Online’s Legal Database, and the papers
and correspondence of George Washington, Benjamin
Franklin, John Adams, Thomas Jefferson, James
Madison, and Alexander Hamilton, as contained in
the National Archives Founders Online Project. Future versions of COFEA will include additional
sources such as colonial newspapers, the Records of
the Federal Convention of 1787, and the Documentary
History of the Ratification of the Constitution. Lee &
Phillips at 31.
In the sections that follow, we use COFEA and
other founding era corpora to show that the original
public meaning of the phrase “Officers of the United
18
States” encompassed significantly more employees
than allowed under the D.C. Circuit’s Landry test. We
then use COCA to show that this original meaning has
remained largely unchanged in the public context
since the time of the Founding. Accordingly, the Court
should reverse the D.C. Circuit’s decision, and fashion
a test that accords with either the original or modern
meaning of the phrase, or both.
II. Empirical evidence from the Founding era
shows that “Officers of the United States”
was not a legal term of art.
The phrase “Officer(s) of the United States” appears in COFEA just 109 times between 1787 and
1799, with just over a third of those being direct quotations of the Constitution. 11 This is a tiny minority of
the 5,353 times the word “officer” appears in the database overall during this same period―even though
59.8% of the time the word “officer” appears in COFEA
it is clearly referencing a federal employee.
1. While the relative obscurity of the longer
phrase does not prove that it was not a legal term of
art at the time of the Founding, we perceive no specialized meaning attached to its use. Instead, the appellation was often used simply to clarify that the
agent was in the employ of the federal government, as
opposed to a private actor or employee of a state or
territory.
For example, in a letter to George Washington,
General Arthur St. Clair expressed concern that the
Our raw data can be accessed at goo.gl/7xt8XP under the
“COFEA ‘Officers of the US’ 1787-199” tab. To replicate our re11
19
Attorney General of the new Ohio territory “would be
an Officer of the Territory only, whereas he should be
an Officer of the United States.” Likewise, Alexander
Hamilton wrote to New York merchant William Seton,
requesting he purchase public debt on behalf of the
federal government since the government had yet to
“employ some officer of the United States” for the task.
We do not see any linguistic evidence to suggest
that the term was limited to only a small subclass of
all federal officials. To the contrary, it applied broadly
to all government employees—“civil and military”
―exercising any non-trivial federal authority. For instance, in his Eighth Annual Address to Congress at
the end of 1797, George Washington called for “legislative revision” of “[t]he compensation to the officers
of the United States,” particularly “in respect to the
most important stations.” Had “Officers of the United
States” been understood to refer only to those federal
employees with a significant degree of authority, as
Landry suggests, there would be no need to give special emphasis to “the most important stations.” Congress responded the following March, raising the
salaries of sundry government officials, high and low.
Act of March 19, 1798, ch. 18, 5 Stat. 542. Nevertheless, Congress did not use the phrase “Officers of the
United States” in the appropriations bill, but instead
referred generally to “officers,” “offices,” and “persons
employed.” Id.
sults, search COFEA for “Officer of the United States” and “Officers of the United States” for the years 1787-1798. Corpus of
Founding Era American English, BYU Law Corpora,
https://lawncl.byu.edu/cofea/.
20
2. Our findings are buttressed by those of Professor Jennifer Mascott, who used aspects of corpus linguistics to demonstrate that the phrase “Officers of
the United States” was in use prior to the creation of
the Constitution. Jennifer L. Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443 (2018).
Using a corpus of 340,000 issues of early American
newspapers, she found twenty uses of the phrase
“prior to the signing of the Constitution on September
17, 1787.” Id. at 478. The first reference was in 1780,
describing Benedict Arnold as a “general officer of the
United States.” Id. It appeared again in 1783 referring
simply to continental officers. Sometimes the phrase
was used with “slight variations,” showing the phrase
was not a term of art. Other uses included “Judicial
Officers of the United States” and “commissaries and
other officers of the United States” who gave out certifications of debt under the Constitution. Id. at 479.
Professor Mascott also performed a corpus analysis
of the Journals of the Continental Congress, “a highly
relevant source for identifying the well-understood
meaning of legally relevant terms and phrases in the
time period just prior to…the drafting and ratification
of the Constitution.” Id. at 477. The Journals contain
forty-one references to “officer(s) of the United States.”
Often the phrase was “just another way to describe
continental military officers or to identify continentallevel, as opposed to state-level, officers.” Id. at 477478. For example, one letter distinguished between
the time a military officer served as an “officer of the
United States” and time served as a captain for his
State. Id. at 478 n.175.
But even if “Officers of the United States” was a
legal term of art, its original meaning was much more
21
expansive than Landry imagines, and appears to have
applied to all government employees―“civil and military” ―exercising any degree of federal authority.
COFEA similarly reveals that the term applied to not
just high ranking government officials, but also customs officials, 12 loan officers, 13 and law enforcement
officials carrying out warrants. 14
III. Empirical evidence derived from corpus linguistics demonstrates that the original public meaning of “officer” would have
encompassed an ALJ.
If we are correct that “Officers of the United
States” was not a new legal term of art, then it is instead simply “a descriptive phrase indicating the officers are federal, and not state or private, actors.”
Mascott, at 471. The meaning of “officer” in the Constitution should thus correspond with the original
public meaning of the term “officer” in general.
1. The word “officer” appears in COFEA 5,353
times between 1787 and 1799. Analysis of a random
12 Letter from Alexander Hamilton to Robert Purviance (August
22, 1794), in XVII The Papers of Alexander Hamilton 127 (Harold
C. Syrett, ed., Colum. Univ. Press 1972).
13 Letter from Abishai Thomas to Alexander Hamilton (June 14,
1792), in XI The Papers of Alexander Hamilton 520 (Harold C.
Syrett, ed., Colum. Univ. Press 1966).
14 Hugh H. Brackenridge, Incidents of Insurrection in the Western Parts of Pennsylvania, in the Year 1794 57 (1795), available
at
https://quod.lib.umich.edu/e/evans/N21549.0001.001?rgn=main;view=fulltext.
22
sample of 540 of these concordance lines 15 reveals the
title was applied to a startling range of officials, including the President, Vice President, Speaker of the
House, Secretary of State, Minister Resident to the
Hague, U.S. Attorney, Collector, Naval Officer, auditor, excise officer, custom-house officer, and loan officer. 16
We also created a specialized corpus of all Statutes-at-Large passed by the first five Congresses of
the United States between 1789 and 1799. Congressional understanding of the word is particularly relevant because the Constitution delegates to
Congress―and only Congress―the authority to deviate from the standard appointment process: while
most officers were to be appointed by the President
with the advice and consent of the Senate, “the Congress may by Law vest the Appointment of . . . inferior
Officers, as they think proper, in the President alone,
in the Courts of Law, or in the Heads of Departments.”
Ironically (given the year of the Constitutional
Convention), the word “officer” appears in these statutes 1787 times, although that number goes down to
1411 when footnotes and sidebars―inserted by a later
editor―are excluded. Of these 1055, or 74.8%, refer to
civil officers; 311, or 22% refer to military officials; and
26, or just under 2%, refer to non-government employees. The remaining 1.3% of concordance lines were too
15 This sample gives us a 95% confidence interval with only a 4%
margin of error.
Raw data available at goo.gl/7xt8XP under the “’Officer’ in
Statutes-at-Large (1789-1799)” tab. Our results can be replicated
by searching for “officer” in the Corpus of Founding Era Congressional Statutes. Corpus of Founding Era Congressional Statutes,
BYU Law Corpora, https://lawncl.byu.edu/cofecs/.
16
23
ambiguous to code. The word was used in a number of
contexts including the creation of new government positions, the enumeration of responsibilities, and the
appropriation of funds.
As with the full phrase “Officers of the United
States” the list of government employees referred to
as “officers” is expansive. In addition to high-ranking
officials such as the President, Vice President, and
Secretary of State, specific enumerated officers included less glamorous positions such as the Purveyor
of Public Supplies, the accountant of the War Office,
and “the melter and refiner [of the U.S. Mint].” Each
Port in the United States had three “customs officers”
appointed by the President and confirmed by the Senate―a “Collector,” “Naval Officer,” 17 and “Surveyor,”
whose duties included receiving ship manifests and
inspecting imports. Even the “doorkeeper” and “assistant doorkeeper” of the House of Representatives―whose responsibilities included such important
tasks as “tak[ing] care of the apartments occupied by
the” House and “providing fuel and other accommodations” for Congressional sessions—were referred to as
both “offices” and “officers”— ―three times. 18
Additionally, the corpus reveals that Congress created a small army of low-ranking government agents
throughout the country―some appointed directly by
17 The term “naval officer” here can be deceptive to modern read-
ers. It was a civil, not military, position within the Treasury Department. See Act of July 31, 1789, ch. 5, 1 Stat. 37.
18 See Act of April 12, 1792, ch. 20, 2 Stat. 252.
24
the President 19 and others by heads of departments 20—including “officers of inspection,” 21 “accounting officers,” 22 patent officers, 23 “revenue
officers,” 24 “custom-house officers,” 25 “loan officers,” 26
“health officers,” 27 “recording officers,” 28 and “auxiliary officers.” 29 The Treasury Department even appointed individual “officers” to survey each “distillery”
and “still” of “spirits” in the Union. 30 Congress sometimes, but not always, referred to clerks and attendants as officers, 31 going as far as to require “each and
every clerk and other officer . . . in any of the depart-
19 See, e.g. Act of Aug. 4, 1790, ch 35, 1 Stat. 175 (noting that the
president appoints “officers of the customs”)
20 See, e.g. Act of Feb. 25, 1791, ch. 10, 1 Stat. 192 (empowering
directors of the Bank of United States to appoint inferior officers).
21 See, e.g. Act of Mar. 3, 1791, ch. 15, 1 Stat. 202.
22 See, e.g. Act of Feb. 12, 1793, ch. 6, 2 Stat. 332.
23 See, e.g. Act of Apr. 10, 1790, ch. 7, 1 Stat. 112.
24 See, e.g., Act of Mar. 26, 1794, ch. 2, 3 Stat. 400.
25 See, e.g. Act of May 22, 1794, ch. 35, 3 Stat. 370.
26 See, e.g. Act of March 14, 1794, ch. 6, 3 Stat. 343.
27 See, e.g. Act of June 9, 1794, ch. 61, 3 Stat. 394 (consenting to
Maryland’s creation of s state health officer for the Port of Baltimore and allowing it to impose additional duties on imports to
fund the position).
28 See, e.g. Act of June 15, 1798, ch. 54, 5 Stat. 567.
29 See, e.g. Act of July 11, 1798, ch. 71, 5 Stat. 591.
30 Act of March 3, 1791, ch. 15, 1 Stat. 203-204.
31 Act of Dec. 23, 1791, ch. 3, 2 Stat. 226.
25
ments of the United States . . .[to] take an oath or affirmation before one of the justices of the supreme
court, or one of the judges of a district court of the
United States, to support the constitution.” 32 “Officers
of the court,” included clerks 33 and marshals. 34
Within the military, there were two classes of “officers” —commissioned and non-commissioned. Commissioned officers, from lowly cornets up to major
generals, received their commissions directly from the
President. These included some surprising military
positions, including chaplains, 35 deputy apothecaries 36 and “a competent number of hospital surgeons,” 37
who each had to be appointed in the same way “as
other officers of the United States”—meaning nominated by the President and confirmed by the Senate.
Act of March 2, 1799, ch. 27, 5 Stat. 721. Non-commissioned officers, however, were simply soldiers who had
moved up through the ranks. They received no presidential commission or appointment, yet they were still
considered “officers.”
2. Once again, Professor Mascott’s empirical work
confirms these findings. Using a digitized version of
Nathan Bailey’s popular eighteenth-century dictionary as a corpus, she identified 500 sentences containing the word “office” or “officer.” These included a
32 Act of March 3, 1791, ch. 18, 1 Stat. 215.
33 Act of June 15, 1798, ch. 54, 5 Stat. 567.
34 Act of March 2, 1799, ch. 22, 5 Stat. 696.
35 Act of March 5, 1792, ch. 9, 2 Stat. 241.
36 Act of March 2, 1799, ch. 27, 5 Stat. 721.
37 Id.
26
number of record-keepers, assistants, and employees
assigned menial tasks including:
(i)The “Agistator” who took cattle into the forest; (ii) the “Chafe-Wax” who “fit[ted] the wax
for the sealing of writs”; (iii) the “Expenditor,”
“a steward or officer, who look[ed] after the repairs of the banks of [a] [m]arsh”; (iv) the
“Gauger” who measured liquids carried on a
merchant ship; (v) the “Searcher” “whose business [was] to examine, and by a peculiar seal to
mark the defects of woolen cloth”; and (vi) the
“Swabber,” “an inferior officer on board a ship
o[f] war, whose office it [was] to take care that
the ship be kept clean.”
Id. at 492.
Mascott also notes that the term “officer” was used
repeatedly in the Federalist and Anti-Federalist papers. Between them, the essays included over 600 uses
of the terms “office(s)” or “ officer(s).” Id. at 474. She
asserts that the Anti-Federalists used the term “officer” to reference “rank-and-file officials.” Id. at 52.
For example, Brutus feared Congress’s taxation power
would lead to “the appointment of a swarm of revenue
and excise officers to pray [sic] upon the honest and
industrious part of the community . . . .” Brutus, Federal Taxation and the Doctrine of Implied Powers (Part
I) (1787), in The Anti-Federalist Papers. Additionally,
Richard Henry Lee wrote: “To discern the nature and
extent of this power of appointments, we need only to
consider the vast number of officers necessary to execute a national system in this extensive country.” An
Anti-Federalist View of the Appointing Power Under
the Constitution (Federal Farmer XIII), in The Anti-
27
Federalist Papers. He also expressed that in the federal capital city, the only non-officer personnel category was that of “servant” or “attendant.” Id.
The Federalists were not as concerned with the
number of federal officers, but this is not because they
did not believe the term “officer” accounted for almost
all federal employees, but because they disagreed with
the Anti-Federalist view that the federal government
would be expansive. Mascott, at 502-503. Still, as Alexander Hamilton said: “As to persons to be employed
in the collection of the revenues, it is unquestionably
true that these will form a very considerable addition
to the number of federal officers . . . .” The Federalist
No. 84 (Alexander Hamilton).
3. Thus far, this Court’s case law has always reflected this broad understanding of “Officers of the
United States,” acknowledging that even relatively
minor government officials such as “a postmaster first
class” and a “clerk of the district court” were “inferior
officers of the United States within the meaning of the
Appointments Clause.” 38 Nevertheless, the circuit
courts have become distracted by Buckley’s “significant authority” language, fashioning balancing tests
that do not take into account past case law, much less
38 Buckley v. Valeo, 424 U.S. 1, 126 (1976); Myers v. United States,
272 U.S. 52 (1926) (holding that a “postmaster of the first class”
was an “Officer of the United States”); United States v. Germaine,
99 U.S. 508, 509-510 (1879) (“[A]ll persons who can be said to
hold an office under the government . . . were intended to be included within one or the other . . . modes of appointment [specified in the Constitution].”); Ex parte Hennen, 38 U.S. 225 (1839)
(holding that law clerk was an inferior officer).
28
available linguistic evidence. 39
For example, in
Landry v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000), the
D.C. Circuit established three “criteria” for courts to
consider when distinguishing between inferior officers
and employees: “(1) the significance of the matters resolved by the officials, (2) the discretion they exercise
in reaching their decisions, and (3) the finality of those
decisions.” Tucker v. Comm’r, 676 F.3d 1129, 1133
(D.C. Cir. 2012). Using this test, the court concluded
that administrative law judges―who “conduct public
hearings in a manner similar to federal bench trials,”
“preside at and regulate the course of th[ose] hearings,” and “set filling deadlines, issue subpoenas, hold
prehearing
conferences,
and
rule
on
mo40
tions” ――were not inferior officers.
But in light of this Court’s precedent and the linguistic norms of the Founding era, a more accurate
reading of the Buckley test is that an “Officer of the
United States” is any federal employee that exercises
39 Samuels, Kramer & Co. v. C.I.R., 930 F.2d 975, 986 (2d Cir.
1991) (examining the duties of the individual, whether the individual exercises discretion, and whether they perform important
functions); U.S. ex. rel. Kelly v. Boeing Co., 9 F.3d 743, 758 (9th
Cir. 1993) (examining whether an individual has “primary responsibility” and “significant authority” to enforce the law);
Bandimere v. SEC, 844 F.3d 1168 (10th Cir. 2016) (examining
whether the position is established by law, whether the person
exercises significant discretion in performing important functions, and whether the position’s salary, duties, and means of appointment are determined by statute).
40 U.S. Security and Exchange Commission, Office of Administra-
tive Law Judges, https://www.sec.gov/alj.
29
non-negligible government authority. 41 If a judicial
law clerk—not to mention the assistant doorkeeper of
the House of Representatives—is an “Officer,” surely
an ALJ is, too.
IV. Empirical evidence derived from corpus linguistics demonstrates that the ordinary
meaning of a public “officer” today includes
ALJs.
Corpus linguistics analysis also demonstrates that
the Landry test is at odds with the modern understanding of a public officer. Our findings show that the
ordinary meaning of “officer” encompasses a host of
employees whom the D.C. Circuit, using its current
framework, would likely not classify as such. Specifically, the term “officer” includes public officials responsible for governmental duties of almost any level
of significance.
1. To conduct our modern corpus analysis, we
used the Corpus of Contemporary American English
(COCA), a 560+ million word corpus capturing actual
usages from 1990 to 2017. COCA is equally divided
41 Recent scholarship has suggested that a corpus analysis can be
strengthened by investigating the relative frequency of the queried term’s synonyms. See Lawrence M Solan & Tammy Gales,
Corpus Linguistics as a Tool in Legal Interpretation, 2018 B.Y.U.
L. Rev. ___ (forthcoming 2018) available at https://ssrn.com/abstract=3047150. One recent study found significant overlap in
the use of the word “officer” and the phrase “public employment.
James Cleith Phillips, et. al., Investigating the Original Meaning
of 'Officers of the United States' with the Corpus of Founding-Era
of
American
English,
available
at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3126975.
30
among spoken, fiction, popular, magazines, newspapers, and academic texts. It strives to capture the full
spectrum of American English―containing everything
from scholarly medical journals to the transcripts of
the Jerry Springer show.
Using COCA, we searched for the term “officer.”
That initial search resulted in 48,353 hits. From these
results, we generated a statistically significant random sample of 604 concordance lines. 42
Our analysis revealed a stark contrast between the
use of the word “officer” in public and private contexts.
For our purposes, the public context includes any level
of government—be it federal, state, or local—while the
private context includes all private entities, including
business, non-profit, and religious organizations.
Only 18% of concordance lines referred to private
officers. And analysis revealed that, in the context of
business organizations, officers are “the most senior
employees” and “are in charge of the day-to-day operations . . . mak[ing] many of the decisions that define
a corporation’s activities,” D. Gordon Smith & Cynthia
A. Williams, Business Organizations: Cases, Problems, and Case Studies 174 (3d ed. 2012). They are
what we might refer to as the “top brass” of the organization, with titles that typically include the word
“Chief”—Chief Executive Officer, Chief Financial Officer, General Counsel, etc.
But in the public context—represented by 78% of
our sample—the original public meaning described
42 Raw data may be accessed at goo.gl/7xt8XP under the “’Officer’
in COCA” tab. To replicate our results, search for “officer” in the
Corpus of Contemporary American English. http://corpus.byu.edu/coca).
31
above still prevails, with “officer” referring to almost
any public employee exercising a modicum of government authority. This is exemplified best in the many
references to law enforcement—police officers, FBI
agents, highway patrolmen, etc.—which make up 59%
of our overall sample. Even the newest cop assigned to
the traffic beat of the smallest police department is
still referred to as an “officer.”
But our sample is replete with other low-level government employees being referred to as “officer.” On
the federal level, these include: “archaeological protection officers” (National Parks), 43 “foreign service officers” (State Department), 44 “problem resolution
43 David Holmstrom, A Summer Camp Where Community Service
is Key, Christian Science Monitor (Aug. 16, 1994), available at
https://www.csmonitor.com/1994/0816/16101.html.
44 See, e.g., Retired Marine Col. James C. Magee, 77, Dies,, Wash.
Post (Dec. 19, 1990), available at https://www.washingtonpost.com/archive/local/1990/12/19/retired-marine-col-jamesc-magee-77-dies/643eef00-c905-4cb4-95d9af6719cc39ec/?utm_term=.156253bbba87.
32
officers” (IRS), 45 “safety officers” (FDA), 46 “regional security officers” (State Department), 47 “intelligence officers” (CIA), 48 “wildlife officers” (National Parks), 49
and “contracting officer.” 50 The umbrella is expanded
when state and local usage is added to the mix: “prison
45 Elizabeth MacDonald, Six Ways to Survive an IRS Audit, Buf-
falo News (Sept. 11, 1994), available at http://buffalonews.com/1994/09/12/six-ways-to-survive-an-irs-audit/.
46 Melissa Block, Analysis: Lester Crawford officially named head
of the FDA, NPR: All Things Considered, Feb. 14, 2005.
47 Lives Could Have Been Saved in Benghazi, Real Clear Politics
Video (Sept. 8, 2013), available at https://www.realclearpolitics.com/video/2013/09/08/gregory_hicks_lives_could_have_been_saved_in_benghazi.html.
48 See, e.g., Robert O’Harrow Jr. et. al., NSA Leaks Puts Focus on
Intelligence Apparatus’s Reliance on Outside Contractors,. Wash.
Post (June 10, 2013), available at https://www.washingtonpost.com/business/nsa-leaks-put-focus-on-intelligence-apparatuss-reliance-on-outside-contractors/2013/06/10/e940c4bad20e-11e2-9f1a1a7cdee20287_story.html?utm_term=.49d9427e6585.
49 Part I―Survival of the Wildest: Stopping Poachers in the Act,
CBS 48 Hours, Mar. 11, 1992.
Steve Inskeep, The Perfection of Character, NPR (Oct. 23,
2006), available at https://www-s1.npr.org/templates/transcript/transcript.php?storyId=6352680.
50
33
officers,” 51 “animal control officers,” 52 “licensing officers,” 53 “truant officers,” 54 “water authority officers,” 55
“child welfare officers,” 56 “community service officers,” 57 “hearing officers,” 58 “placement officers,” 59 and
51 Ross B. MacDonals et. al., The Politics of Victimhood, 60 J. of
Int’l Affairs 173 (2006), available at https://www.thefreelibrary.com/The+politics+of+victimhood%3A+historical+memory+and+peace+in+Spain+and+...-a0163049402.
Richard Berman, A Liberal Dose of State Ballot Measures,
Wash. Times (Nov. 7, 2016), available at https://www.washingtontimes.com/news/2016/nov/7/a-liberal-dose-of-state-ballotmeasures/.
52
53 Kenneth R. Timmerman, Close-out Sale at Commerce, 28 Am.
Spectator 36 (Aug. 1995).
54 Truant Officers Attend to Schools’ Needs, Chicago Sun-Times,
(Sept. 11, 1992).
55 Allison Brown, Counting Farmers Markets, 91 Geog. Rev. 655
(Oct. 2001), available at https://www.questia.com/library/journal/1G1-93207326/counting-farmers-markets.
56 Professor X, In the Basement of the Ivory Tower, Atlantic (June
2008), available at https://www.theatlantic.com/magazine/archive/2008/06/in-the-basement-of-the-ivory-tower/306810/.
57 Elgin Community Service Officer Charged with Theft of Explorer Funds, Chicago Tribune (Jan. 4, 2016), available at
http://www.chicagotribune.com/suburbs/elgin-couriernews/news/ct-ecn-elgin-police-criminal-charges-st-010520160104-story.html.
58 Christopher N. Osher, Denver Inmate Abuse Case Brings Up
Old Questions about depty conduct, Denver Post (Apr. 27, 2016),
available at https://www.denverpost.com/2014/09/03/denver-inmate-abuse-case-brings-up-old-questions-about-deputy-conduct/.
59 J. Heilemann et. al., Uncle Sam Doesn’t Want You, 22 Wash.
Monthly 38 (Dec. 1990).
34
“senior fisheries officer[s].” 60 Many of these government officials exercise only de minimis authority. Yet
they are nonetheless considered “officers” in today’s
ordinary speech.
References to military officers comprise 28% of our
overall sample. As at the Founding, there remains a
distinction between “commissioned officers” and “noncommissioned officers” (NCOs). Today, commissioned
officers―all 359,090 of them―have each received a
presidential commission and confirmed by the Senate. 61 This includes even the most recent ROTC graduate.
By contrast, a non-commissioned officer or NCO is
one who climbs to a particular rank among enlisted
service members and exercises even modest authority
over other enlisted service members. 62 Combined, the
two classes of “officers” comprise more than 64.5% of
the entire military. 63 And all of them—NCOs as well
as commissioned officers—are considered “officers.”
60 Carlos M. Duarte, Will the Oceans Help Feed Humanity?, 59
Bioscience 967 (2009).
61 U.S. Dep’t of Defense, Officer Rank Insignias, https://www.defense.gov/About/Insignias/Officers/; Dep’t of Defense, 2016 Demographics Report 6 (2016).
See U.S. Dep’t of Defense, Enlisted Rank Insignias,
https://www.defense.gov/About/Insignias/Enlisted/; see also Noncommissioned officer, Black’s Law Dictionary 1258 (10th ed.
2014) (“An enlisted person in the Army, Air Force, or Marine
Corps in certain pay grades above the lowest pay grade.”).
62
Dep’t of Defense, 2016 Demographics Report 6, 15 (2016)
(916,078 of 1,419,231; of those, 359,090 are commissioned and
546,988 are NCOs).
63
35
Our data also reveal that occasionally the public
and private senses of the word “officer” are inverted.
The corpus contains a handful of references to corporate employees outside the top brass being referred to
as “officers”—i.e “security officer,” “officer in the
church,” and “loan officer.” More rare is when a government position is described using corporate jargon.
For example, in 2009 President Obama created a position within the White House called the “Chief Technology Officer,” tasked with “harness[ing] the power
of technology, data, and innovation to advance the future of our Nation.” 64 Interestingly enough, the White
House did not consider the “Chief Technology Officer”
an officer under the Buckley test until the position was
codified in 2017 legislation. 65
In light of these data, it is possible that the D.C.
Circuit’s understanding of the Buckley test has its origins in an erroneous—and almost certainly subconscious—importation of the business sense of the word
“officer” to the Constitution. Contextually this makes
little sense. Even today, the ordinary meaning of a
government “officer” is much broader―extending to
“archaeological preservation officers” and “animal
control officers.”
In short, our vernacular certainly considers an administrative law judge an “Officer of the United
States.” Our legal system should, too.
64 Office of Science and Technology Policy, Office of the Chief
Technology Officer, https://obamawhitehouse.archives.gov/administration/eop/ostp/divisions/cto/.
65 See American Innovation and Competiveness Act, Pub. L. No.
114-329, § 604, 130 Stat. 2969, 3037 (2017).
36
CONCLUSION
The D.C. Circuit’s decision does not reflect either
the original or modern sense of the phrase “Officers of
the United States” which extends to any federal employee exercising non-negligible government authority. The Court should therefore reverse, and fashion
an empirically sound test grounded in the linguistic
meaning of the Constitution.
Respectfully submitted,
JAMES HEILPERN
Law & Corpus Linguistics
Fellow
BYU LAW SCHOOL
415 JRCB
Provo, UT 84602
February 28, 2018
GENE C. SCHAERR
Counsel of Record
MICHAEL T. WORLEY
SCHAERR | DUNCAN LLP
1717 K Street NW, Ste. 900
Washington, DC 20006
(202) 787-1060
gschaerr@schaerr-duncan.com
APPENDIX
1a
APPENDIX A: List of Amici
Laurence Anthony is a Professor in the Faculty
of Science and Engineering at Waseda University, Japan.
Ronald R. Butters is a Professor Emeritus of
English and former Director of the Linguistics Program at Duke University.
Malcom Coulthard is an Emeritus Professor of
Forensic Linguistics at Aston University.
Mark Davies is a Professor of Linguistics at
Brigham Young University.
Jesse Egbert is an Assistant Professor of Applied
Linguistics at Northern Arizona University.
William G. Eggington is the Ludwig-Weber-Siebach Humanities Professor in the Linguistics and
English Department of Brigham Young University.
Edward Finegan is a Professor Emeritus of Linguistics and Law at the University of Southern California.
Tammy Gales is an Associate Professor of Comparative Literature, Languages, and Linguistics at
Hofstra University.
Tim Grant is a Professor in Forensic Linguistics,
Director of the Centre for Forensic Linguistics, and
Associate Dean of Partnerships and Community Engagement at Aston University.
2a
Stefan Th. Gries is a Professor of Linguistics at
the University of California, Santa Barbara.
Jack Grieve is a Professorial Fellow in Corpus
Linguistics in the Department of English Language
and Applied Linguistics at the University of Birmingham.
Tony McEnry is a Distinguished Professor of
English Language and Linguistics at Lancaster University.
Jeffrey R. Parker is an Assistant Professor of
Linguistics & English Language at Brigham Young
University.
Rui Sousa-Silva is an Assistant Professor of the
Faculty of Arts and Post-doctoral Researcher at the
Linguistics Centre of the University of Porto.
Sara White is the Corpus Linguistics Research
Fellow at the J. Reuben Clark Law School at Brigham
Young University.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.