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

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[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 StatesJohn Tyleractually 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 Warhad 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).]

NEXT: "On That Premise This Land Was Created, and on That Premise It Has Grown to Greatness"

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  1. I am beginning to suspect that Q lied to you guys.

    1. Trump, too.

    2. It is dawning on me that maybe the President never intended to release his tax returns.

      1. He’s waiting to release them until after he’s elected in 2024.

        I’m sure he’ll tell us all about it over the next four years.

      2. NT,
        What took you so long to realize that?

      3. I don’t think the audit is finished yet.

        I also hear he left Biden a detailed explanation of his wonderful health plan instead of the traditional letter.

  2. It’s 12:06 pm on January 20, 2021. I need to know who is president so I can know if this helps or hurts him, so I can know if it’ll GIT ‘IM, or save him, accordingly.

    1. A basic canon of construction, even in textualism, is that an interpretation should not lead to an absurd result. But that’s what your argument does. You contend the President of the United States, who takes the oath referenced in Section 3, could violate that oath by engaging in an open insurrection against the United States (regardless of whether that’s what Trump actually did here) and Congress is powerless to disqualify him—and ONLY him, among those oathtakers—from office. That is not a plausible construction of Section 3; it is absurd. And there is nothing in the structure of the Fourteenth Amendment or the Constitution that would support your reading.

      1. Sorry, intended to be a reply to the post and not your comment.

      2. No, it’s not absurd. It is in fact quite plausible that Congress should be powerless to disqualify someone since voters can more easily and more reliably do the same by simply not voting for the person. Why should Congress have the power to usurp the authority of the people they claim to represent?

        Take some time to actually read the article. Quite a bit supports the author’s reading of the text. That doesn’t automatically make it right but it’s more than plausible enough to overcome your “absurd result” canon.

        1. I read the article. The democracy canon applies equally to all of the officers that unquestionably can be barred by the Fourteenth Amendment. So the question is: what makes the President different? And the authors have no ready answer for that apart from an absurd reading of the text.

          1. The President is elected nationally and not from just a Confederate state. Remember that the 14th Amendment was only intended to apply to the just-conquered Confederacy — they never realized that it would apply to them too.

            1. If it was so intended a textualist would insist it say so

              1. It DOES say so.

                It lists all the Federal elective offices that aren’t elected nationwide.

                It doesn’t list the one office that IS voted nationwide.

                If you’re going to complain abotu “textualism”, you might want to at least try to read the text

            2. There’s another patented Dr. Ed “remember that.”

          2. Chernobog’s argument is based on his claim that the presidency is no different from any other position in government. If that were the case, then it would seem likely that there would be no unique or substantial differences in powers or duties between that office and other offices. So, other office holders would be appointed in a similar manner, and would have to have the same qualifications, such as being a natural-born citizen. Other office holders would also have their compensation unchangeable. They would also have similar powers, e.g. to command the armed forces, to make treaties, to nominate ambassadors, and convene or adjourn legislative bodies.
            Since his basic contention is untenable, his amended assertion would have to be that the office is, in fact, different, but that he doesn’t think that those differences carry any weight with regard to the conclusion Blackman and Tillman arrive at.
            He would need to make that substantive argument.

            1. My argument is not that the presidency is “no different from any other position in the government.” My argument is that it is no different in the sense of whether it would be appropriate for someone who has engaged in insurrection against the United States to be barred from holding its office. Your argument seems to be that the presidency holds such awesome powers that it makes sense that the Fourteenth Amendment wouldn’t apply to bar an insurrectionist from holding it. How is that a tenable position?

              1. My argument, at least to begin with, is that you have little warrant to lump the presidency in with all other positions until you have adequately examined the reasons for the multiple singular characteristics of the presidency. So far you have merely raised this in form of a (skeptical) question, but it needs a detailed answer before you can claim that there is no difference. Blackman and Tillman seem to have done at least some of the groundwork, although it would appear that more discussion will be needed.

              2. Your argument is that you get to decide what qualifies as “insurrection”, and that the voters aren’t allowed to disagres with you.

                Because, apparently, you are God. And insanely left wing.

                Because anyone who was NOT insanely left wing would understand that every single Democrat who supported BLM and / or Antifa while they were rioting last summer qualifies as a “insurrectionist” under your definition.

                Which means we have a whole bunch of Democrat members of the House and Senate who need to be removed, post-haste.

                Starting with everyone who took part in that kneeling ceremony

            2. The power of the President comes from the Constitution. The powers of the “officers” come from delegation by the elected government (President and Congress).

          3. What makes the President (and Vice-President) different is that they are elected, not appointed.

        2. “It is in fact quite plausible that Congress should be powerless to disqualify someone since voters can more easily and more reliably do the same by simply not voting for the person. Why should Congress have the power to usurp the authority of the people they claim to represent?”

          I think it’s probably the case that Section 3 does not authorize disqualification of presidents. But your reasoning can’t be right. Senators and Representatives are also accountable to voters.

          1. They’re only accountable to the voters of one State.

            The point of that Section was to keep traitorous States from sending traitors back to Congress.

            It didn’t apply to the President because all the traitorous States combined didn’t have the political power to install a President.

        3. The reason why Congress can’t disqualify someone except through impeachment is the Attainder Clause. If Congress simply voted that he had engaged in insurrection and is disqualified from holding future office, that would be a bill of attainder. The text of Section 3 does not explicitly repeal the Attainder clause. And there is no reason to think an Amendment whose primary purpose was to expand constitutional rights would remove a right the Framers had thought so important as to put in the original constitution, before the Bill of Rights.

          In addition to the impeachment process, a judge could invoke Section 3 and declare him ineligible for future office as part of sentencing for an insurrection offense.

          1. Maybe, if someone had standing to bring a case on that basis.

        4. No, it’s not absurd. It is in fact quite plausible that Congress should be powerless to disqualify someone since voters can more easily and more reliably do the same by simply not voting for the person. Why should Congress have the power to usurp the authority of the people they claim to represent?

          No; you’re misunderstanding the provision in question and Blackman’s argument.

          Blackman’s argument is not “the 14th amendment can’t be used to bar someone from the presidency.” The argument is, “the 14th amendment can’t be used to bar a former president from any office.”

          That is, if I served a term as a member of the Iowa state legislature representing Grinnell, Iowa, before joining a rebellion, I am barred by the 14th amendment from almost any federal or state government job. But if I once served as president of the United States (and had never held another government position) and then tried to overthrow the federal government, I face no repercussions under the 14th at all. That’s utterly irrational. There’s no reason they would have wanted to punish everyone except POTUS.

          (Your position makes no sense for another reason. The “the voters should be the ones to decide” is unquestionably not a theory underlying the 14th amendment, since it bars rebels from serving in the House, despite the fact that house members are elected by voters.)

          1. Blackman and Tillman’s argument makes perfect sense:
            There did not exist any former US President who had held no other office, who had supported the Confederacy, and was still alive at the time the Amendment was written.

            So they had no need to add coverage for those non-existent people.

            OTOH, there were many such former State legislators who they DID want to target. So they targeted them.

          2. I thought you were supposed to be intelligent, David.

            The people of South Carolina could elect a traitor to the House. So the 14th blocked that.

            The people of the former confederacy, all together, can not elect someone to be President.

            The writers of the 14th Amendment rightly believed that no former Confederate official could win the Presidency. They did believe that a former Confederate official could win win a House race, or be appointed to a Senate seat by a State legislature.

            And they expected that, sadly, at some point a Democrat would win the Presidency.

            So they made sure that Democrat President could not appoint a former Confederate official to any position in the Federal government.

            IOW, they covered all realistic possibilities, and none of the ludicrous ones.

            Don’t let TDS rot your brain

      3. You are wrong

        Section 3 was written to prevent Southern voters from returning to office people who had led the rebellion.

        As you can’t win the Presidency without winning Northern votes, the writers of the 14th Amendment were not worried about a former traitor being elected President.

        For you to not see this shows your ignorance, not a problem with the argument

    2. I agree the President is included in Section 3 and the Framers of the 14th Amendment didn’t intend an absurd result.

      I have one quibble, however. Congress can certainly impeach and remove from office and disqualify him from holding further office under Article II. Or a court could convict him of an insurrection offense and then find Section 3 applicable.

      But Congress can’t simply declare him to have participated in insurrection and declare him ineligible for future office under Section 3 just by a vote. That would be a bill of attainder, in violation of the Attainder Clause.

      1. Sorry, typo. It’s Article I (Section 4).

      2. I agree with that argument. Congress certainly can’t use Section 3 as a substitute for impeachment, conviction, and disqualification.

        1. You’re both wrong.

          The President is not an officer under the US. Neither is a Senator or House member.

          So impeachment can’t block someone from running for any of those offices.

          It just keeps someone from being appointed to an office

  3. “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof”

    Does the ‘aid or comfort’ apply just to the ‘insurrection or rebellion’ part? Or can we go after all those who support Communist China?

    1. If you care, there’s scholarship on what “aid and comfort” and “enemies” mean in a constitutional context. And it’s not “having political views I don’t like.”

      1. Does it include attempting to get the Soviet Union to help defeat Reagan in 1984? Ted Kennedy did just that — and the Soviets were (a) wise enough not to get involved and (b) documented it so that when the USSR collapsed a few years later, we all found out about it.

        1. You’re certainly welcome to argue that Ted Kennedy is barred from office under the Fourteenth Amendment, if you want.

          1. If we can retroactively impeach a former President, then we can retroactively void Kennedy’s re-elections after 1984.

            As an aside, the Ted Kennedy “Immersion” Museum has a boat ramp. Seriously. And for those of you not familiar with the ocean, a boat ramp is a paved road that goes into the ocean, all the way to the low tide line — quite a ways as we have 9-11 foot tides here.

            Yes, the Ted Kennedy Museum has a road that goes into the ocean…

            1. Impeachment doesn’t void an election result.

              I’m pretty sure that he would prefer impeachment to his current condition.

            2. Why is it of interest to you that there is a boat ramp? Are you aware of the differences between a boat ramp and a bridge? If there were a glass of water at the museum, would that make your little pecker as hard as the boat ramp seems to make it?

              1. It’s not true anyway, as anyone can see by going to Google maps.

        2. For once, Dr. Ed isn’t just completely making something up. But he’s distorting something that doesn’t have any credibility to begin with.

      2. But perhaps invading congress and seeking to lynch the sitting VP might qualify, even though it falls under the category of having political opinions I don’t like

        Oh, thats right they were just picnicking under the dome

        1. Am I the only person wondering how the FBI obtained a recording of Zello communications? I’m thinking that they had someone recording this, and that means planning in advance — and that means that they could have prevented this, if they’d wanted to.

  4. I wouldn’t think the question of “officer” status matters, because a court (not the Senate) would have to convict Trump of insurrection or treason before Section 3 would apply. And that’s not going to happen.

    1. Where are you getting a conviction requirement from the text of the Fourteenth Amendment?

      1. Where are you getting insurrection? I cannot find it defined in the US Code. The authors of the 14th Amendment clearly meant the Confederacy, which was an insurrection.

        1. Yes, exactly right. And after the civil war a fair few people found themselves disqualified from office without ever having been convicted of anything.

          https://en.wikipedia.org/wiki/Philip_Francis_Thomas

        2. clearly?

          funny don’t see it in the text

        3. If the authors of the Fourteenth Amendment meant only the Confederacy, they would have said it.

          1. Textualism and originalism only applies when it produces the correct outcome. You obviously need to read more Blackman Tillman writing.

          2. You’re right

            The BLM riots wre an insurrection against the existing US government.

            So, every Democrat official who gave them any aid and comfort must be removed from office, and prevented from ever holding any office again.

            Bye Nancy! Bye Joe! By Kamala!

      2. Conspicuously absent from the Section is any criterion for adjudicating the Section as applying to a particular person.

        -dk

  5. The democracy canon cuts both ways.

  6. Oh fuck right off. This wasn’t an insurrection, you goddam idiot.

    1. According to the words of the people who actually participated in it: yes, it was.

      Take your own advice.

      1. Anyone calling the mostly peaceful protest an “insurrection” or “coup” isn’t to be taken seriously. Just another day of propaganda and idiocy.

        1. Likewise, anyone disputing the words of the rioters and insurrectionists themselves doesn’t have any fucking ears.

          Someday, perhaps you’ll learn your lesson about arguing facts you cannot dispute or disprove. Until then, enjoy being completely and utterly irrelevant.

          1. I am supreme dictator of the universe and anyone who disputes that is a poopy pants with a poopy face.

            I dare you to dispute that.

            1. Well, can’t dispute that, according to Jason Cavanaugh.

              1. I’ll take the chanting of “Hang Mike Pence,” and the admission that people were involved in a revolution, and looking to kill members of Congress, and preventing the counting of Electoral votes over your denials any day.

                1. “Admission”? More like some mental cases indulging in their own fantasy, but you’ll take the word of anyone who supports your preferred narrative.

                  1. We’re going to pretend that the verbally-stated objectives and intent of the criminals doesn’t hold any meaning?

                    I can see why you don’t post frequently, if that’s your contribution. Better luck next time.

        2. “Mostly peaceful”? I guess in the same way that a doctor might say, “Good news, family.” Your father is mostly healthy . . . it was just his heart that gave out.”

          1. “Except for the stab wound, your son’s body was in perfect working order.”

      2. Jason,
        Only US media and D politicians call it that.
        In the foreign media it was a riot at the US Capitol

      3. We also need some finding that Trump himself was one of the insurrectionists. Merely saying “it’s obvious” won’t cut it.

        -dk

    2. impeachment and senate trial is not prosecution

      that comes later…..

      and no traitortrump should not go to prison but he should never be elected so much as dog catcher ever again

      nope just a picnic with a side of lynching

    3. It was insurrection. Get an education. Start with standard English.

      Warning: Education might diminish bigotry, backwardness, and belligerent ignorance.

    4. There has been an insurrection, aided and abetted by the Democrat party and the media (BIRM) since last summer.

      No one takes this clause seriously.

  7. Now do Vice President Harris raising bail money for Antifa/BLM rioters.

      1. Harris absolutely Tweeted a request that people donate to an organization that provided bail money for Antifa/BLM rioters. Her Tweet included the information that the money raised would be used to, “help post bail for those protesting on the ground in Minnesota.”
        Here is the WaPo admitting that Harris did what she was accused of doing, but trying mightily to claim that its consequences weren’t so terribly bad.
        https://www.washingtonpost.com/politics/2020/09/03/kamala-harris-tweeted-support-bail-fund-money-didnt-just-assist-protestors/

        1. Seems you’ve mixed up protesters and rioters. And kinda inserted Antifa into the equation as well.

          Funny, that.

          1. No mixup whatsoever.
            I will admit beginning from the premise that protestors don’t get arrested or need bail, but rioters do. At the very least, the arrested were accused of riotous behaviors.
            Beyond that, had you read the first in the series of posts I responded to (from ‘nobody 2’), you might have noted the phrase, “raising bail money for Antifa/BLM rioters.”
            So, in fact, Harris requested contributions to provide bail for Antifa/BLM rioters, exactly as specified.

            1. protestors don’t get arrested or need bail, but rioters do.

              Yeah, it’s not like the police ever arrest someone who doesn’t deserve it, particularly people protesting against the police.

              Your premise reveals your outcome.

              You took a premise about Antifa/BLM rioters and linked something about protesters. And, really, a longstanding organization that bails out protesters if you clicked through.

              Harris requested contributions to provide bail for Antifa/BLM rioters, exactly as specified.
              And then you just make things up.

              1. “Yeah, it’s not like the police ever arrest someone who doesn’t deserve it, particularly people protesting against the police.

                Your premise reveals your outcome.”

                The premise is supported by the linked article, which says that almost all protestors get released without bail, and the ones who need bail are folks charged with more serious crimes.

                “One defendant, Jaleel Stallings, was charged with attempted murder after allegedly shooting at police during protests…”

              2. I’m sure it would make the whole thing much better for you if we said that Harris helped raise bail money for *alleged* BLM/Antifa rioters.
                And despite your attempt to obfuscate, Harris specifically included language stating that the funds would be going to those arrested in the Minnesota riots.
                You would probably be more convincing at this sort of thing if you could point to the places where you made your principled objections when posters referred to demonstrators at the Capitol, or to Trump, as any species of insurrectionist or seditionist.

            2. “protestors don’t get arrested or need bail”

              There’s your mistake

          2. Seems you’ve mixed up protesters and rioters. And kinda inserted Antifa into the equation as well.

            And he misunderstands the concept of bail, as well.

        2. OK, name 1 person who did something violent or destroyed property who got bailed out by Harris.

          1. Jaleel Stallings

            1. He wasn’t convicted of doing something violent or destroying property. So that’s 0.

              1. It was only attempted murder and assault by shooting at police, so it doesn’t count?
                Or are you pretending that he’s innocent, and the film and witnesses are all fake and lies?

                1. No conviction, bail wasn’t denied. Still 0.

  8. Blackman and Tillman just don’t get it.

    Congress can impeach whomever they want, because they can. Why bother with a document that was written, like 100 years ago?

    1. 232 years (1789). Or 155 years (1865).

      But, yes…

      1. You apparently missed the nuance that some lefty journalist stated a few years ago when complaining that the constitution was just an old document written for a different time.

        1. The Constitution is over a hunnert years old!
          Ezra Klein (2010)

  9. WaPo — no bastion of MAGA thought — is openly stating that the Capitol takeover was planned weeks in advance, apparently the DOJ is alleging this in court filings.

    QED Trump didn’t do it.

    https://www.washingtonpost.com/local/legal-issues/conspiracy-oath-keeper-arrest-capitol-riot/2021/01/19/fb84877a-5a4f-11eb-8bcf-3877871c819d_story.html

      1. Wow, for a group that claim to be military, their idea of OPSEC compares unfavorably with your average middle schooler’s. Heck, my 12 year old is at least familiar with the concept of burner phones and accounts.

        1. I know. Not to mention the analog radios you can buy at Target — which leave no evidence unless someone is recording the frequency in real time.

          I’m really starting to suspect that the FBI could have stopped this before it even began, and either screwed up or didn’t want to stop it.

    1. Trump has been disputing the election outcome since before he beat Hillary. He did it.

    2. Just think about how bad one has to be at logic to think “This was planned” means “Trump didn’t do it.”

  10. I’m not which is is more pathetic.. that Blackman and Tillman think that it was Trump (rather than the people who stole the election) who engaged in “insurrection”, or that they think that “law” has any meaning in a one party fascist state other than as an expression of the will to power of the party.

  11. I once worked for someone who, when I told him I thought a plan he was proposing wouldn’t work, decided the fix must involve explaining it all to me again, because clearly if I didn’t agree it could only be because I didn’t understand. We seem to be on the same merry-go-round here.

    In other breathtaking news, Donald Trump signed an executive order this morning waiving compliance with a 5-year lobbying ban for executive branch personnel, using this text:

    Employees and former employees subject to the commitments in Executive Order 13770 will not be subject to those commitments after noon January 20, 2021,

    SInce Trump’s term ended at noon today, how valid is an order that doesn’t take effect until after noon?

    1. Imagine for a moment that somebody in his administration had left in mid 2020. And that Trump had been reelected.

      The ban would have extended to mid 2025, months after Trump left office. Would it have been valid then?

      The ban was not a statute, he was requiring people hired by the administration to sign a binding contract that they would not engage in lobbying for 5 years after leaving employment.

      Here is the text of that contract. Note Section 3?

      I’d say, yes, the order is valid.

      1. I tend to agree, though I don’t think Section 3 applies because although I used the word “waiving” this was technically an EO revoking the earlier EO.
        I’m not sure it is particularly ignominious. Obama and Clinton signed Ethics EOs at the start of their first terms. Obama’s non-lobbying provision lasted “until the end of the Administration”, so automatically terminated in 2017. Clinton’s Ethics EO did have the five year term, and he also revoked it with a separate order effective noon on his last day. It makes sense if the purpose was to prevent an ex-employee from lobbying the same Administration they had been a part of that the obligation doesn’t need to continue past that Administration’s end.
        It’s curious though that GWB didn’t have one – of course that doesn’t mean he lacked ethics, only that he didn’t demand them of others.

        1. Your quote would seem to waive compliance with “those commitments”, I take them to be the contractual commitments. Waiving the earlier EO itself would be kind of pointless, because it just directed people that they had to sign the contract to take the job, and nobody is taking jobs in the Trump administration anymore.

    2. This is more significant than you might think — he very well may be setting up a lobbying firm to advocate the MAGA agenda.

    3. I guess I should add, pretty pathetic last act as President.

      1. It’s not 4d chess this time?

        1. Have *I* ever suggested Trump engaged in 4d chess?

          1. At 4chan, the Q fans seem confused. And hurt. And angry.

            This is good.

    4. The order took effect earlier. It could also have said that any left alive in 2081, when the redhead daughter from Six Feet Under is expected to expire, shall at that point no longer be able to lobby.

  12. Apparently, the Reason contributors are trying to get in their last shots at Trump before he leaves and they have nothing to do but make excuses for Biden.

    1. It will be interesting to see what the media writes about in a month? I’m sure their short list of articles is mop up jobs knocking Trump, talking about Biden cleaning up, and your standard hero worship pieces of Harris. But what about after that?

  13. This, and every article like it, validtes Shakespeare’s opinion of lawyers.

    1. Shakespeare’s opinion of lawyers is that they were a valuable bulwark against tyranny, you functionally illiterate baboon. Do you not understand the difference between a character and an author?

  14. NEWSFLASH: The Dems LOVE cops now. One walked our new first lady up to the podium because he was a hero defending the Capitol from evil right wingers. DEFUND THE POLICE must be canceled….at least when it comes to protecting elitist politicians in their enclave…

    1. You don’t even understand what you’re bitching about.

      I feel sorry for your parents.

  15. I’m looking forward to the article tomorrow that debunks Blackman’s analysis, which, as of late, has proven to be so poor that it warrants not needing to bother with this article here today.

    1. I will have to learn to wait in order to let others do my thinking for me. Thanks for the timesaving advice.

      1. I’m not sure why it’d be anyone else doing my thinking if I did it today or tomorrow, but I guess I don’t think like you!

  16. Prosecuting the loser of an election, isn’t that what Putin does? He made up charges of fraud. Trump did not proscute Clinton, as he should have. This is not a good game.

    I can prosecute anyone in this country. Each person commits 3 federal felonies a day, even a toddler on a tablet. The lawyer profession must be controlled to save this nation. It is out of control.

    1. impeachment and senate trial is not prosecution

      that comes later…..

      and no traitortrump should not go to prison but he should never be elected so much as dog catcher ever again

    2. All political “norms” are out the window so don’t count on any appeals to rationality to win the day or even get recognized as common sense.

      The media broke our system of government with the constant hatred and “get Trump” mentality. Now we will all have to pay for that four year bender the public tolerated. And it ain’t going to be pretty…

      1. You don’t seem to be coping very well.

        Lots of Not Mad energy here.

        1. I’m good. Bought a popcorn maker (a big one with wheels like the movies have) and moved all my investments to stable funds. I’ll be fine over the next four years. Just me, this here popcorn machine, and lots of sit back and enjoy the fun time.

      2. “The media broke our system of government. . . . ”

        Seems to me there was an election recently and maybe an inauguration too.

        If so, then I’m pretty sure our system of government isn’t broken.

        1. Those are the theatrics of government. Even Rome was still doing those 1000 years after the Republic collapsed.

          1. Constitutional provisions = theatrics of government.

            Suuuuurrrreeeee……

            1. Where do you think theatrics come from? There is the act and then the substance. You can have the act of counting votes, but if you just never actually count the vote well does the act matter?

              1. SO just please provide actual proof
                I mean Georgia hand counted votes but your guy won even though…

                SO in the end, if your guy lost, vote was unfair.

                But only in the residential election, those US rep votes on the same ballot, those all counted

                1. Who really knows at this point and I would say that even if the “truth” were uncovered and the election was rigged it would not matter in the least.

                  My point was that theatrics are usually based upon something of substance, but you don’t need the substance to do the pageantry aspect. In fact sometimes it is more fun just to “go through the motions” then to do the thing behind it that drives the practice. What happened today was just that, pageantry.

                  1. No you are just sad your hero lost

                    There is no doubt, at all that traitortrump lost
                    Just like he lost the popular vote last time, he could not pull a con to win this time

                2. Sure thing who did the recount. Same folks who did the original count. Isn’t that special.

                  1. What you will never see:

                    Cop: Of course I let him go, the guy said he dinduit….what, I wasn’t supposed to believe him?

                  2. Uh, yeah all the commies in Georgia

                    delusional much?

                    he lost

                    bigly

                    1. It only takes a few dozen in Atlanta….

                3. When you look at the legislation and litigation that had the end results of increasing the ability of engaging in voter fraud and reducing the ability of detecting it, any reasonable person should have some suspicion that the goal was to increase the ability of engaging in voter fraud and reducing the ability of detecting it.

            2. Clearly you never got around to reading the constitution of the USSR.
              Sounded like a really wonderful place, according to that document.

    3. “Prosecuting the loser of an election, isn’t that what Putin does? He made up charges of fraud. Trump did not proscute Clinton, as he should have. This is not a good game.

      Is your brain at war with itself?

      1. He’s very Not Mad and throwing bombs thinking trolling will make him feel better.

        Couldn’t happen to a nicer guy.

  17. To answer the actual question whether the President is an “officer of the United States” for purposes of Section 3 of the Fourteenth Amendment, I’d have to lean towards No.

    The amendment clearly lists constitutional positions (Senator, VP, etc.) and it certainly is NOT an oopsy omission that the President isn’t listed.

  18. Josh should look the meaning of the words in 1888, when the 14th Amendment went into effect. (snark)

  19. Wow what an insurrection. Here are the conquerors inside the senate . Terrifying !!!! LOL

    https://m.youtube.com/watch?v=J7jFie_4cY8

    1. You are an embarrassment to the nation

      They killed a cop and injured many more

      traitortrump and his minions

      fascist human garbage
      https://www.nbcnews.com/video/video-shows-officer-being-crushed-by-violent-pro-trump-mob-in-deadly-capitol-riot-99210309545

      1. You only care about this kind of thing when it suits you.

        1. You mean attempting to overthrow the gov’t

          mostly I car about that all the time

          Oh, but you are a wannabe fascist so you only care that they failed and we are not living in traitortrumps New Fascist Republic

      2. “They killed a cop and injured many more”

        But enough about Antifa and BLM.

        So, let’s removed from office and give a lifetime ban to every single Democrat or Republicans politician who ever uttered words of support for BLM or Antifa any time last year

  20. In the Free Enterprise quote from Roberts, the CJ is explicitly quoting and citing II.2, and saying that the people don’t vote for those officers. So the argument above tracks as:

    1. Moe: The tuna fish is bad today.
    2. Larry: “The tuna fish” (Moe, supra at 1) is on a sandwich. And yet all sandwiches are good. This is a paradox.
    3. Curly: So, all tuna fish is on sandwiches, then, right?

    Mr. D.

  21. When I read the headline, my reaction was, “of *course* the President is an officer of the United States for purposes of Amendment 14, Sec. 3. What kind of hairsplitting are these guys doing to say otherwise?”

    Then I read the analysis and began to think these professors might be right.

    Think about the background – Section 3 was basically a bill of attainder aimed at former Confederate leaders. The authors of this section knew who they were targeting. They knew that no living ex-Presidents had bee Confederates, and that Breckenridge would, as an ex-Senator, be excluded from office under this section without having to discuss his status as a former Vice President.

    Therefore, there is no need to twist the traditional meaning of “officer” to get to What the Framers Really Meant. Just as there’s no need to twist the meaning of “oath” to include affirmations, since to my knowledge the Confederate leaders were not really affirmation-takers and hence wouldn’t have been a concern in drawing up this particular bill of attainder.

    When we look at the primary objective or Section 3 as a bill of attainder, and consider the effects on *post* Civil War rebels as a distinctly secondary consideration, the professors’ post isn’t as foolish as at first I supposed.

    1. Of course, bills of attainder would normally be unconstitutional, but Section 3 is part of the Constitution itself, and apparently they had no problem putting a bill of attainder in the Constitution.

      Or ex post facto law, however you want to categorize it – it’s OK because it’s in the Constitution.

    2. They knew that no living ex-Presidents had bee Confederates

      Not so. President Tyler was a member of the Confederate House of Representatives. https://en.wikipedia.org/wiki/John_Tyler#Post-presidency_and_death_(1845%E2%80%931862)

      1. I said *living* ex-Presidents.

        As the post notes, when the 14th Amendment was being drafted in 1866, Tyler had been dead for four years.

        1. In fact, your own link mentions the year of his death.

          1. Fair enough, but it also shows that the possibility of a (former) president participating in an insurrection was almost certainly on the drafters’ minds. It follows that, absent a very good explanation to the contrary, they must be assumed to have included the possibility.

            1. Perhaps…*or* we could look at the Framers of Sec. 3 as primarily focused on language which would cover then-living ex-Confederates – with the effect on future bad actors simply an afterthought.

              If we see their intent as purging the former Confederate elite from public life (unless restored to their rights by Congress), then the language they used, under normal rules of interpretation, would accomplish that goal. Ex-Presidents didn’t have to be targeted because the only Confederate ex-President (Tyler) was dead. Also, the only Confederate ex-Vice-President (Breckenridge) was independently disqualified by virtue of being a former Senator.

              It’s possible that the professors left something out in their post. If so, their error would be reflected in my comments since I’m pretty much copying the post’s reasoning. But it sounds more plausible to me than when I read the headline.

              Maybe

              1. I’ll leave that lone “Maybe” standing there, since it’s a good summary of the tentative state of my knowledge at this point.

            2. But, despite seeing this possibility, they still wrote it to exclude Presidents and VPs

              Which pretty much demolishes your point

  22. “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.””

    A fuller quote from Booth’s speech in the Congressional Record is:

    “As first suggested by the Senator from New York and brought sharply out by the Senator from Minnesota, the President, as the executive head of the Government, was not impeachable by any analogy of the common law. His position does not correspond to that of the king who was not impeachable or to the prime minister who was. Story very ably argues, and refers to this very section of the Constitution in confirmation, that the President is not an officer of the United States. As was tersely said by the Senator from Massachusetts, [Mr. Boutwell,] “He is a part of the Government.”
    – emphasis added

    Josh doesn’t seem to be attributing the quotes properly in his argument, or at the least, he doesn’t acknowledge the clear context of the statement. Booth was approvingly referring to Joseph Story’s argument (rather than giving his own “1876” argument) and then approvingly quoting another member of Congress (Why Josh didn’t just use Boutwell’s original quote is beyond me). If anything, Booth’s speech shows that Joseph Story’s original argument was still influential in 1876.

    But, Josh may want to be warry of using Booth as an example, since, by his own statements in the same speech, he was a “Living Constitutionalist.”

    “The Constitution did not live until adopted by the people of the States. We must consider their ideas as well as the convention’s. It lives now by, for, and through the people of to-day. It is for them, not they for it. We must calculate its meaning in the light of events, by judicial decisions, by the meridian of 1876 as well as 1789. The Constitution of the United States is not dead, but living. If it were an incrustation, not a living body, it would long since have stifled this nation or been destroyed by it.”
    – emphasis added

    If Josh wants to use Booth’s words as supporting evidence for his argument (although I do not think he attributes the words correctly) then Booth’s words must carry some authoritative weight (or why else would Josh use them as supporting evidence). If Booth’s words carry authoritative weight, particularly in the area of constitutional interpretation, then he provides supporting evidence that the Constitution is to be interpreted as a living document. If Booth’s statement in this latter context is to be discarded, then an explanation is needed for why his words in the former context ought to carry weight, while his words in the latter context ought not. Thus the problem of “cherry-picking” historical quotes (but again, Josh doesn’t really quote this correctly).

  23. This seems right. No one argues that congressmen are “officers of the United States”, in fact, unanimously taking it on faith that they are not. Why would the President and Vice President, elected by the the people, be different?

    1. Because they’re in the executive branch.

  24. Section 2 of Article II clearly states: “The President shall be Commander in Chief of the Army and Navy of the United States, …”

    I accept that the President is “an officer of the United States.”

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