John Vlahoplus: Insurrection, Disqualification, and the Presidency [Update: With a Comment]Michael Ramsey

John Vlahoplus (independent) has posted Insurrection, Disqualification, and the Presidency (13 Brit. J. Am. Legal Stud. (forthcoming)) (28 pages) on SSRN.  Here is the abstract:

Section 3 of the Fourteenth Amendment provides in part that anyone who takes an oath as an officer of the United States to support its Constitution but engages in insurrection may not hold any civil or military office under it until Congress removes the disability by a two-thirds vote of each House. The insurrection of January 6, 2021, and the coming presidential election raise two pressing constitutional questions. For purposes of Section 3, is the President an officer of the United States, and is the Presidency an office under the United States?

This Article makes the case that the President is an officer of, and holds an office under, the United States for those purposes. It contributes to the debate over the provision’s reach by setting out the broad case for Section 3’s application to Presidents and the Presidency, utilizing text, purpose, legislative history, canons of construction, ordinary usage, and contemporaneous judicial and executive interpretations.

The Article demonstrates public understandings before and after ratification that Section 3 bars eligibility to the Presidency, both in general and for the most important disqualified rebel—Jefferson Davis. It catalogues descriptions of Presidents as officers of the United States from Washington in 1794 to Jefferson, Jackson, Van Buren, Harrison, Polk, Taylor, Fillmore, Buchanan, Lincoln, Johnson, Grant, and Garfield, many of which occurred in the context of the President’s election, constitutional position, and role in preventing domestic violence, preserving the Union, and enforcing the law during Reconstruction. Finally, it ties related Reconstruction statutes, legislative history, and contemporaneous judicial and executive interpretations into the broad case that Section 3 bars faithless Presidents from again taking the oath to “preserve, protect and defend the Constitution of the United States” until Congress permits.

On the relationship between this article and the views of Professors Tillman and Blackman on the key constitutional terms, the article comments (p. 5, footnotes omitted): 

Professors Josh Blackman and Seth Barrett Tillman have closely read the offices and officers language in the Constitution of 1788. They conclude that within that document the term “Officers of the United States” refers “to appointed positions in the Executive and Judicial Branches,” and the term “Office . . . under the United States” refers to those positions plus “non-apex appointed positions in the Legislative Branch.” Under their reading, the terms exclude elected officials and elective positions. The President is not an officer of, and does not hold an office under, the United States. After all, for example, Article II Section 3 provides that the President “shall commission all the Officers of the United States,” but Presidents do not commission themselves.

This Article takes no position on whether Professors Blackman and Tillman correctly interpret the 1788 Constitution. Instead, it addresses the use of those terms after 1788 including proximate to the ratification of the Fourteenth Amendment in 1868, a time of Reconstruction that differed radically from the original Founding. ... This Article makes the case that in the context of the Civil War and Reconstruction, the Section 3 terms include elected officials and elective positions generally, and the President and Presidency specifically.

COMMENT FROM ANDREW HYMAN:  John Vlahoplus mentions that, "This Article takes no position on whether Professors Blackman and Tillman correctly interpret the 1788 Constitution." However, John's article would present a stronger argument if he could prove that the 1788 Constitution did use the term "officer of the United States" in the Commissions Clause in a way that is consistent with the same term's use in the 1868 constitutional amendment.  This is easy to do, in two steps.  First, the verb "commission" was understood in 1788 as synonymous with "empower," and in this particular context it meant to give a writ conferring some right or authority, so it was (and is) intrinsically impossible for the president to commission himself as president.  Second, it is an ancient maxim that the law does not require impossibilities; if the president is an officer under the United States, then the Commissions Clause must have a presidential exception, according to both common sense as well as the ancient maxim that the law does not require impossibilities.