Towards a Modern Understanding of “Officers of the United States,” by James A. Heilpern

by Guest Blogger — Sunday, Apr. 22, 2018

On Monday, the Supreme Court will hear oral arguments in the case Lucia v. SEC. The question presented is whether administrative law judges of the Security Exchange Commission should be considered “Officers of the United States” subject to the Appointments Clause of the U.S. Constitution. In a previous post, I suggested that the Court should take an originalist approach to this question. Using a new interpretive tool called “corpus linguistics,” I demonstrated that at the time of the Founding the phrase “Officer of the United States” referred to any government official wielding non-negligible federal power—up to and including the Assistant Doorkeeper of the House of Representatives. Variations on this technique were undertaken by both Jennifer Mascott and James Phillips to try and discern the original public meaning of the Appointments Clause.

But of course not all of the justices on the Supreme Court are originalists. While the Court has stated that “[t]he Constitution was written to be understood by the voters,” United States v. Sprague, 282 U.S. 716, 731 (1931), they are often more concerned about the understanding of the modern voter than the ones that ratified the Constitution in 1789―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). But this does not mean that corpus linguistics is inapplicable; it simply means we need to use a different corpus. As we explained in the amicus brief I submitted on behalf of fifteen leading corpus linguistics scholars, the modern corpus supports our conclusion that an administrative law judge should be considered an “officer” as well.

To conduct the 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 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 random sample of 604 concordance lines―large enough to produce statistically significant results.[1] Our raw data can be accessed here.

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 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), “foreign service officers” (State Department), “problem resolution officers” (IRS), “safety officers” (FDA), “regional security officers” (State Department), “intelligence officers” (CIA), “wildlife officers” (National Parks), and “contracting officer.” The umbrella is expanded when state and local usage is added to the mix: “prison officers,” “animal control officers,” “licensing officers,” “truant officers,” “water authority officers,” “child welfare officers,” “community service officers,” “hearing officers,” “placement officers,” and “senior fisheries officer[s].” 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.[2] 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. Combined, the two classes of “officers” comprise more than 64.5% of the entire military. And all of them—NCOs as well as commissioned officers—are considered “officers.”

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.”[3] 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.[4]

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.” It would strain credulity not to extend the same distinction to administrative law judges.

 

[1] 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).

[2] 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).

[3] Office of Science and Technology Policy, Office of the Chief Technology Officer, https://obamawhitehouse.archives.gov/administration/eop/ostp/divisions/cto/.

[4] See American Innovation and Competiveness Act, Pub. L. No. 114-329, § 604, 130 Stat. 2969, 3037 (2017).

James Heilpern is the Law and Corpus Linguistics Fellow at the J. Reuben Clark Law School at Brigham Young University

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