Is the President an "officer of the United States" for purposes of Section 3 of the Fourteenth Amendment?

Update: In December 2021, Seth and I published an article in the NYU Journal of Law & Liberty, based on this blog post. You can download our article on SSRN: 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 as "all executive and judicial Officers, both of the United States and of the several States of the United States" were required to be "bound by Oath or Affirmation to, support this Constitution." . . . 

Finally, the Commissions Clause provides that "all the officers of the United States" receive presidential commissions. (emphasis added) All means all. This structure explains why appointed executive-branch and judicial-branch officers receive commissions, but there is no record of any elected official, whether a President, Vice President or a member of Congress, ever receiving a [presidential] commission. The reason is simple: Elected officials like the President are not "Officers of the United States."

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."

Still, critics may argue that the meaning of the phrase "officer of the United States" in Section 3 is different from the meaning of the phrase "officers of the United States" in the Constitution's original seven articles. In other words, there was some linguistic drift or slippage between the 1788 ratification of the Constitution and the 1868 ratification of the Fourteenth Amendment. Let's assume that the President is not an "officer[] of the United States" for purposes of the 1788 Constitution. Under that assumption, it is possible that the President might be an "officer of the United States" for purposes of Section 3. Thus, a reader might take the limited position that the President is an "officer of the United States" for the purposes of Section 3.

This position is conceivable. In 2011, Tillman wrote that "[t]he stretch of time between the two events [1788 and 1868] was more than half a century. . . . It is hardly surprising that in the post-bellum epoch new meanings might have accrued to older language. Such linguistic slippage is common." (emphasis added). Still, absent contrary evidence, the default presumption should be one of linguistic stability, rather than of linguistic drift. In other words, the proponents of the view that Section 3's jurisdictional element applies to the presidency have the burden to show either (1) that the particular linguistic drift involving the Constitution's "officer of the United States"-language has actually occurred or, (2) at the very least, that Section 3's "officer of the United States"-language, in fact, extends to the presidency. Their position has not yet been supported in any comprehensive or systematic fashion. That position cannot simply be asserted or presumed, absent evidence, that the original public meaning of the phrase "officer of the United States" encompassed the presidency when the Fourteenth Amendment was ratified. Advocates for Section 3 disqualification of President Trump have a burden of production and persuasion to come forward with at least some evidence supporting their view. We have always had a healthy respect for the considered views and intuitions of academics immersed in law, history, and allied fields of scholarly inquiry. But evidence should be something more than personal intuitions or citations to the conclusory statements of other modern commentators asserting how the 1868 public must have understood the language of Section 3. 

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." Justice Miller's opinion, drafted two decades after the Fourteenth Amendment's ratification, is some probative evidence of the original public meaning of Section 3's "officer of the United States"-language. Miller's opinion is some evidence rebutting any presumption of post-1788 linguistic drift with respect to the phrase "officer of the United States." Likewise Mouat rebuts the position that, circa 1868, the obvious, plain, or clear meaning of the phrase "officer of the United States" extended to the presidency. 

The Executive Branch has long relied on Justice Miller's discussion of "officers of the United States" in Mouat. In 1943, Attorney General Francis Biddle cited Miller's opinion, and explained that "under the Constitution of the United States, all its officers were appointed by the President . . . or heads of departments or the courts of law." (emphases added). Biddle's reading of Mouat did not distinguish "officers of the United States" as used in a statute from "officers of the United States" as used in the Constitution. In 2007, the Office of Legal Counsel reaffirmed this position. The Executive Branch has long taken the position that the phrase "officers of the United States" does not extend beyond persons appointed pursuant to Article II, Section 2 procedures. A memorandum by the Biden Administration's OLC or an argument by House managers that the President is an "officer of the United States" would be in tension with prior DOJ memoranda.

Justice Miller and the Department of Justice are not alone. There is additional evidence that is roughly contemporaneous with the ratification of the Fourteenth Amendment. During the 1876 impeachment trial of William Belknap, Senator Newton Booth from California observed, "the President is not an officer of the United States." Instead, Booth argued, the President is "part of the Government." And David McKnight's 1878 treatise on the American electoral system reached a similar conclusion. McKnight wrote that "[i]t is obvious that . . . the President is not regarded as 'an officer of, or under, the United States,' but as one branch of 'the Government.'" These sources tend to rebut any argument in favor of post-1788 linguistic drift with respect to the phrase "officer of the United States." Likewise, these sources provide some evidence that in the period following the Civil War the phrase "officer of the United States" did not extend to elected positions, including the presidency.

So far, advocates for Section 3 disqualification of President Trump have not advanced comprehensive or systematic evidence that the President is an "officer of the United States." They have the burden to establish that the "officer of the United States"-language of Section 3's jurisdictional element extends to the presidency. They should also rebut the evidence we have put forward in this post (and elsewhere, on many prior occasions). 

It is not enough for the proponents of Section 3 disqualification against President Trump to argue that their textual position is conceivable. We do not doubt that it is conceivable. Rather, proponents of a Section 3 disqualification must offer evidence that establishes their view as the better view. To date, the proponents of Section 3 disqualification have not met this burden. 

Some of our critics may respond with something akin to a purposivist argument: the Framers of the Fourteenth Amendment would have never intended to exclude the presidency from the jurisdictional element of Section 3. Could it really be, the argument goes, that virtually every elected and appointed position in the federal and state governments would be encompassed by Section 3's jurisdictional element, but not the presidency? After all, a former President of the United States—John Tyler—actually was elected to the Confederate congress! Would the Framers really exempt Tyler (or men like him) from disqualification? (Professor Magliocca made a related point in a recent Balkinization post.) And John Breckinridge, who had served as Vice President of the United States under President Buchanan, later served as a general in the Confederate army. 

There is a pragmatic rationale that explains why the presidency and vice presidency were excluded from the jurisdictional element of Section 3. By the time the Fourteenth Amendment was approved in 1868, there were no living Presidents that had supported the Confederacy. Tyler had already died in 1862. The other living former Presidents (Fillmore, Pierce, Buchanan, and Johnson) had not supported the Confederacy. Moreover, Breckinridge, a former Vice President of the United States who joined the Confederacy, had previously served as a U.S. Senator. Therefore, he was already clearly covered by Section 3's jurisdictional element. Thus, the Framers of the Fourteenth Amendment—whose focus was on past wrongdoing during the Civil War—had no pressing reason to draft Section 3's jurisdictional element to cover former or future U.S. Presidents. 

We think the democracy canon provides further support for our position. Professor Richard L. Hasen explains that under this canon a provision of the Constitution that might be read to "limit the citizen in his exercise of [the right of suffrage] should be liberally construed in his favor." This policy concern equally applies to the political candidate who wishes to run for a specific position. Given two reasonable readings of the Constitution and its "officer of the United States"-language, the democracy canon favors the reading that expands democratic choice. Under what appears to be the House's reading of Section 3, voters and electors nationwide are permanently disenfranchised from selecting a presidential candidate. Under our approach, voters and electors can select the President of their choice. We should prefer the latter reading. The House's approach is inconsistent with the democracy canon.

We should not read Section 3's text through the lens of the transitory and felt needs of the moment. The original public meaning of the Fourteenth Amendment, including Section 3's jurisdictional element, was fixed more than 150 years ago.

Right now, the Senate is not squarely faced with the question of whether a Section 3 disqualification against President Trump would bar him from running for the presidency in the future. Similarly, even if the Senate convicts President Trump in ongoing impeachment proceedings, and votes to disqualify him under the Impeachment Disqualification Clause, it is not the Senate which will finally resolve the scope of that disqualification. To be sure, members of Congress can state on the record that they are barring Trump from ever serving again as President. But those statements are not dispositive of the constitutional issue. Rather, if Trump decides to seek re-election at some future date, state and territorial boards of election would have to decide if Senate disqualification under the Impeachment Disqualification Clause, or, perhaps, a Senate vote to disqualify him under Section 3, would bar Trump from the ballot. Alternatively, boards of election would have to determine the effect (if any) should Congress pass a Section 3 concurrent or joint resolution against President Trump's holding an "office . . . under the United States." In each of these situations, as a general matter, the determinations of boards of election could be appealed to the courts. In all likelihood, it is not Congress, but the courts which would have the final say in regard to resolving the scope of congressional or Senate disqualification.

As explained, the courts may be asked to adjudicate the effect of: (1) a Senate disqualification under the Impeachment Disqualification Clause, (2) a Senate vote to disqualify under Section 3, or (3) a congressional concurrent or joint resolution purporting to give effect to Section 3. The courts may also be asked to decide an appeal of a decision by an elections board in regard to a ballot-access dispute, which may involve issues (1) to (3). Alternatively, even in the absence of any disqualification decision by the Senate or by Congress, an elections board might decide a Section 3-related ballot challenge. Likewise, in the absence of any disqualification decision by the Senate or by Congress, the courts may be asked to decide, in the first instance, whether President Trump was disqualified for purposes of Section 3. Clearly, there are many possible routes through which these issues might be litigated before boards of election, the courts, or both. Still, there is a common thread: If the presidency is not an "officer of the United States" as that phrase was used in Section 3's jurisdictional element, then President Trump cannot be disqualified under Section 3. 

Moreover, if the courts agree that Section 3's jurisdictional element does not apply to the presidency, then the courts would not need to decide if the "office . . . under the United States"-language used in the disqualification element of Section 3 (and elsewhere in the Constitution) extends to the presidency. Similar difficult and novel issues would arise should the Senate vote to disqualify President Trump under the Impeachment Disqualification Clause, which, like Section 3, also uses "office . . . under the United States"-language. 

Finally, it is not clear that the House managers seek to disqualify Trump under the Impeachment Disqualification Clause, as well as under Section 3. The sole article of impeachment is opaque on this point. It references Section 3, but we think it is only referenced in the context of efforts to define a substantive impeachable offense. We expect that President Trump's counsel will argue that the text of the House's single article of impeachment does not give him fair notice that he faces Section 3 disqualification. Once again, the House's rushed drafting may determine the fate of the Senate impeachment trial.

[Seth Barrett Tillman is a Lecturer at Maynooth University Department of Law, Ireland (Roinn Dlí Ollscoil Mhá Nuad).]