Can President Trump Appoint Himself Chairman of the Kennedy Center Board of Trustees?

President Trump announced that he would appoint himself as chairman of the Kennedy Center Board of Trustees. 20 U.S.C. § 76h provides that “The general trustees shall be appointed by the President of the United States.” As a statutory matter, Trump seems to have this authority. I am unaware of any instance in which any President has ever appointed himself to an office. (Here, I will assume that the chairman position is in fact an office, but I haven’t thought the issue through fully; indeed, the precise status of the Kennedy Center is apparently an open question.)

Is such a self-appointment constitutional? First, in the abstract, government officials have used their authority to obtain new offices. Governors have appointed themselves to fill Senate vacancies. As best as I can recall, these governors also resigned from their state position to avoid dual-office holding. But such a resignation was not required by the Constitution. Perhaps a related issue occurred during the impeachment of President Andrew Johnson. At the time, Benjamin Wade, the Senate President Pro Tempore, was next in line for the presidency. Wade voted to convict Johnson, though Johnson was ultimately acquitted.

Second, Trump’s self-appointment does not violate the Incompatibility Clause. That provision states that “and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” This clause does not prohibit dual office-holding within the executive and/or judicial branches. Chief Justice Marshall concurrently served as Secretary of State in the final days of the Adams Administration. (Marshall was at fault for not delivering William Marbury’s commission).

Third, the Constitution does impose a limit on the President’s ability to hold other offices. The Foreign Emoluments Clause provides that the President can accept an “Office . . . from any King, Prince, or foreign State” only with the consent of Congress. And the Domestic Emoluments Clause provides that the President “shall not receive within that Period any other Emolument from the United States.” But this text only applies to a position that provides emoluments, or compensation. By contrast, the Impeachment Disqualification Clause extends to an “Office of honor, Trust or Profit under the United States.” Tillman and I have written that an office of honor refers to an uncompensated position. As I understand it, the chairman position is uncompensated, so there is no emolument problem. I do not think the Framers who drafted this provision considered the President appointing himself to an unpaid position, but that is a separate question.

Fourth, there may be a structural problem with this appointment. The President has the duty to take care that the laws are faithfully executed. This obligation is supervisory in nature. That is, the President supervises that his subordinates execute their statutory authorities. The President generally does not execute statutory authority. I am not sure how the President could exercise this supervisory function while at the same time executing the statutory duties himself. No man should be a judge in his own cause; I would think a similar standard applies to the duty of faithful execution. But I am tentative on this last point.

Once again, President Trump brings obscure constitutional provisions and questions to the fore. Do not think for a moment these questions have easy answers.

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