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01/24/2021

Section Three of the Fourteenth Amendment Does Apply to the Presidency
Andrew Hyman

Section Three of the Fourteenth Amendment disqualifies various people from holding various offices if they “shall have engaged in insurrection or rebellion” against the United States.  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.  I respectfully and respectively disagree.

Section Three does jurisdictionally apply to former presidents; also, anyone subject to a valid impeachment and conviction can be disqualified from holding the presidency in the future.  Moreover, only an Article III court can enforce Section Three against a former official, because former officials are not subject to impeachment and conviction by the Senate, especially after their initial term of office expires.

Professors Blackman and Tillman point to the Removal Clause as evidence that the word "officer" does not describe the President:

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.

They point out that this clause specifically mentions the President, whereas Section Three of the Fourteenth Amendment does not, so they conclude the latter does not pertain to the President.  However, as you can see, the Removal Clause is limited to “civil officers” and excludes “military officers,” so the President (being both) had to be mentioned explicitly in the Removal Clause.  This point was made during the Blount impeachment in 1799 and was apparently uncontested (see last sentence on this page).  Section 3 of the Fourteenth Amendment generically refers to people who “hold any office, civil or military, under the United States” and “an officer of the United States,” so there was no need to mention the President specifically.  

The President is often considered to be an officer. Article II refers to “the Office of President of the United States,” and both the 12th Amendment and 22nd Amendment explicitly refer to the “office of President.”  The legislative history of the Fourteenth Amendment confirms that the framers meant to include the President under the category of “officer,” as  Gerard Magliocca has explained:

During the debate on Section Three, one Senator asked why ex-Confederates “may be elected President or Vice President of the United States, and why did you all omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation.” Another Senator replied that the lack of specific language on the Presidency and Vice-Presidency was irrelevant: “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’” Practically speaking, Congress did not intend (nor would the public have understood) that Jefferson Davis could not be a Representative or a Senator but could be President.

I agree with Professor Magliocca's analysis.  Blackman and Tillman also draw our attention to the Appointments Clause, which says this:

[The President]…shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law….

However, they mistakenly replace the comma after “United States” with a period, and omit the ensuing context.  The words “all other officers” do not include the President himself because they are narrowed by the ensuing context to only those officers “whose Appointments are not herein otherwise provided for, and which shall be established by Law….”  

Blackman and Tillman further draw our attention to the Oaths Clause which says:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution….

I don’t see how that clause indicates the President is not an officer, or why we should read that clause as exempting the President from an oath requirement.  Such an exemption would directly conflict with Article II, Section 1 (“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation….”).

Another clause that Blackman and Tillman point to in this regard is the Commissions Clause, which provides that the President “shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”  This clause allegedly proves that the President and Vice-President are not officers of the United States.  But the word “ambassadors” here obviously does not include ambassadors appointed by the President, and the word “Laws” obviously does not include laws made by the several states or by foreign countries.  By the same token, the word “officers” must be read in context.  Samuel Johnson’s dictionary (published in 1766) says that the words “to commission” mean “To empower; to appoint.”  People who are empowered or appointed by the President can be commissioned by him, people who are already empowered and appointed need not be commissioned by him.

So that’s why Section Three does indeed  jurisdictionally apply to former presidents, and why anyone subject to a valid impeachment and conviction by the Senate can be disqualified from holding the presidency in the future.  But, as far as I know, people whose terms have expired have never been impeached until this week, nor convicted, and the Constitution would have mentioned such a thing if it were possible.  On the contrary, during the Constitutional Convention, "Mr Rutlidge and Mr. Govr. Morris moved 'that persons impeached be suspended from their office until they be tried and acquitted.'"  Thus, incumbency was obviously assumed.  Similarly, at the North Carolina Ratification Convention, Governor Samuel Johnston explained:

I never thought that impeachments extended to any but officers of the United States. When you look at the judgment to be given on impeachments, you will see that the punishment goes no farther than to remove and disqualify civil officers of the United States, who shall, on impeachment, be convicted of high misdemeanors. Removal from office is the punishment--to which is added future disqualification. How could a man be removed from office who had no office?

Of course, he cannot.

UPDATE BY ANDREW HYMAN ON 30 JANUARY 2021:  I would like to point out that my blog post above used the word "officer" several times as shorthand for "officer under the United States" or "officer of the United States" but I did not mean to suggest that Professors Blackman or Tillman have done so or would do so.  The Constitution itself apparently uses this same shorthand, according to Professor Vikram Amar: "Granted, there are a few instances when the Constitution characterizes the leaders of Congress as 'officers.' But in these instances the legislator is an officer of the house in which he sits, not an 'officer of the United States' or an 'officer under the United States' - and these latter phrases are the constitutional phrases for which the word 'Officer' in Article II's Succession Clause seems to be a shorthand."  Also, as described above, Professor Magliocca quoted one Senator and a reply from a second Senator, so I want to mention that the first Senator then expressed satisfaction with the second Senator's reply: "Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am; but I was misled by noticing the specific exclusion in the case of Senators and Representatives".  Furthermore, regarding the Removal Clause (see the first blockquote above), I want to mention that the Vice-President was likely named explicitly, even though he is not in any sense a military officer, because he has a hybrid character as part of the executive and legislative branches, and members of the latter are not considered officers of the United States at all (see the link to Professor Vikram Amar for details).  Finally, I want to mention that the Vice-President (unlike the President) is likely not covered directly by Section 3 of the Fourteenth Amendment, but is partially covered indirectly via the Twelfth Amendment, which says: “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”