Is the President an “officer of the United States” for purposes of Section 3 of the Fourteenth Amendment?
[This post is co-authored with Seth Barrett Tillman.]
The structure of Section 3 of the Fourteenth Amendment is a bit complicated. Section 3 provides:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, 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, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 3 has four primary elements. First, the jurisdictional element specifies which positions are subject to Section 3:
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.”
Second, the offense element defines the conduct prohibited by Section 3. It regulates the conduct of a person satisfying the jurisdictional element who:
“shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”
Third, the disqualification element defines the legal consequences or punishment that Section 3 provides for. A person who satisfies the jurisdictional and offense elements of Section 3 shall not be:
“a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state”
Fourth, the amnesty or removal element allows Congress to remove the disqualification or disability:
“Congress may by a vote of two-thirds of each House, remove such disability.”
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.” But the sole article of impeachment against President Trump elides over this issue. Indeed, the House’s impeachment article did not discuss Section 3’s jurisdictional element. It states:
Further, section 3 of the 14th Amendment to the Constitution prohibits any person who has “engaged in insurrection or rebellion against” the United States from “hold[ing] any office . . . under the United States”. (emphasis added).
Section 3 does not apply to “any person” or even “any person” who committed the offense element. Here, the House seems to assume that the phrase “officer of the United States” is equivalent to “any person.” Perhaps the House assumed that a President is an “officer of the United States.” Still, the House’s position is not entirely clear.
By contrast, our 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. We discussed this taxonomy in September 2017.
First, the Appointments Clause spells out with clarity that the president can nominate “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” (emphasis added) . . .
Second, the Impeachment Clause expressly provides that “[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment. …” (emphasis added) Justice Story explained that the President and Vice President’s [express] enumeration in the Impeachment Clause in addition to “all civil Officers of the United States” shows that the President and Vice President are not deemed “officers of the United States” themselves. Otherwise, the Framers would have stated that “all other civil officers” were subject to impeachment. (emphasis added)
Further, the Oaths Clause specifically enumerates that “Senators and Representatives, and the Members of the several State Legislatures,” as well
Article from Latest – Reason.com
