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A Response to Andrew Hyman on Section 3 of the Fourteenth Amendment [Updated with a Comment from Andrew Hyman]
Seth Barrett Tillman & Josh Blackman

A few points in response to Andrew Hyman’s recent post Section Three of the Fourteenth Amendment Does Apply to the Presidency. Hyman wrote: "Professors Josh Blackman and Seth Barrett Tillman say, first, that Section Three does not jurisdictionally apply to former Presidents of the United States, and say, second, that the Senate cannot disqualify anyone at all from holding the presidency." 

First, in our recent co-authored post on Volokh Conspiracy, we did not state that Section 3’s jurisdictional element applies to Presidents or former Presidents. And we did not state that it does not apply to Presidents or former Presidents. Instead, we took the limited position that there is “good reason” to conclude that it does not apply—a position which we supported with evidence. Furthermore, we argued that the burden of production and persuasion lies with those making an application or seeking to apply Section 3. It is they who have to make a case that Section 3’s generic “officer of the United States”-language applies to the presidency. 

Second, in regard to the scope of a Section 3 disqualification—i.e., whether or not a defendant who is disqualified under Section 3 can hold the presidency—we took no position at all. 

Third, Hyman wrote: “Professors Blackman and Tillman point to the Removal Clause as evidence that the word ‘officer’ does not describe the President ….” That is entirely incorrect too. Our recent Volokh Conspiracy post made the point that the President is not an “officer of the United States.” To support that view, Blackman and I pointed to many sources—constitutional text, Supreme Court opinions, memoranda from the Executive Branch, etc.—indicating that positions characterized as “officers of the United States” are appointed exclusively pursuant to Article II, Section 2 procedures. To substantiate the opposite point, Hyman quotes Professor Magliocca—but Magliocca’s discussion relates to “office … under the United States”-language in Section 3’s disqualification element, and not to “officer of the United States”-language in Section 3’s jurisdictional element. The two Section-3 elements use different language in the very same sentence, which is some indication that these textual distinctions were chosen with care and carried different meanings as a matter of original public meaning. Hyman may think it proper to conflate “officer,” and “officer of the United States,” and “office … under the United States,” but any such position is at odds with the text. He is welcomed to that position, but his ascribing that position to Blackman and me is error.

(Editor's note:  This post has been updated to reflect that it was co-authored by Josh Blackman).

COMMENT FROM ANDREW HYMAN: Professors Blackman and Tillman, in a second blog post to which I linked, wrote: “The Senate has no power to disqualify a defendant from holding elected federal positions, such as the presidency.”   So, like I asserted, they said that the Senate cannot disqualify anyone at all from holding the presidency. 

I also asserted that they said Section Three of the Fourteenth Amendment does not jurisdictionally apply to Presidents or former Presidents  of the United States.  Indeed, they contend (1) that they are unpersuaded Section Three applies, (2) that they presented evidence it does not apply, and (3) that others have the burden to present evidence to the contrary.  So, they are not exactly neutral in this matter, though perhaps I could have  explained in more detail that they were making a suggestion rather than taking a firm position.  

Of course, I realize that one of their two blog posts relates primarily to disqualification under Section 3 of the 14th Amendment, while the other relates primarily to disqualification under the impeachment clause of Art. I, Sec. 3.  But these are very closely related (indeed overlapping) subjects, which is why I bundled them into one blog post of mine.  As for their last point above, I’ll just refer people to what I already wrote (in which I used the word “officer” as shorthand for officer of/under the United States).