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01/22/2021

Josh Blackman & Seth Barrett Tillman on the President and Section 3 of the Fourteenth Amendment
Michael Ramsey

At Volokh Consptracy, Josh Blackman & Seth Barrett Tillman:  Is the President an "officer of the United States" for purposes of Section 3 of the Fourteenth Amendment? From the introduction:

Most of the current debates about Section 3 have focused on the offense element: Has President Trump "engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof?" Some recent discussions of Section 3 have glossed over the text of the jurisdictional and disqualification elements. These two elements, which refer to two different types of officers and offices, raise two difficult and novel legal issues. First, does the President meet the jurisdictional element? Second, does the disqualification element extend to the presidency? In this post, we will focus on the first question. 

The Impeachment Clause, Article II, Section 4 of the Constitution of 1788, expressly applies to the President. The Impeachment Clause provides:

"The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." 

But the jurisdictional element of Section 3 does not specifically mention the presidency. Instead of using express language akin to the Impeachment Clause, the jurisdictional element of Section 3 applies to:

A "person . . . who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States."

President Trump has never been a "member of Congress" or "a member of any state legislature" or an "executive or judicial officer of any state." Therefore, the only way for Section 3's jurisdictional element to cover President Trump would be if he had taken an oath "to support the Constitution" as an "officer of the United States." 

And further:

[O]ur position is that there is some good reason to think the presidency is not an "officer of the United States." The phrase "officers of the United States" is used in the Constitution's original seven articles. Four provisions of the Constitution of 1788 use the phrase "Officers . . . of the United States": the Appointments Clause, the Impeachment Clause, the Oaths Clause and the Commissions Clause.  [The post argues that these provisions all apply only to people who are appointed, not elected.]

...

There is a recent Supreme Court opinion discussing the scope of the Constitution's "Officers of the United States"-language. In Free Enter. Fund v. Pub. Co. Accounting Oversight Bd(2010), Chief Justice Roberts observed that "[t]he people do not vote for the 'Officers of the United States.'" Rather, "officers of the United States" are appointed exclusively pursuant to Article II, Section 2 procedures. It follows that the President, who is an elected official, is not an "officer of the United States."

Plus discussion of what "officer of the United States" meant in the late nineteenth century, including:

Moreover, there is some good authority to reject the position that Section 3's "officer of the United States"-language extends to the presidency. In United States v. Mouat (1888), Justice Samuel Miller interpreted a statute that used the phrase "officers of the United States." He wrote, "[u]nless a person in the service of the government, therefore, holds his place by virtue of an appointment by the president, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not strictly speaking, an officer of the United States." 

I'm persuaded.  (At least until I hear a good counterargument).