The Volokh Conspiracy

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Don't Be So Certain About Trump And Section 3

The jurisdiction element of Section 3 does not "definitely" or "plainly" apply to Trump.


Section 3 of the Fourteenth Amendment includes a jurisdictional element. 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."

The only way for Section 3's jurisdictional element to cover President Trump would be if he took an oath to support the Constitution as an "officer of the United States." Trump only swore one constitutional oath: as President of the United States. In short, for President Trump to be subject to Section 3 disqualification, the President must be an "officer of the United States" for purposes of Section 3.

Two op-eds were recently published about President Trump and Section 3. And these pieces contend that this issue is open-and-shut: Trump is clearly an "officer of the United States" for purposes of Section 3.

In Politico, Bruce Ackerman and Gerard Magliocca wrote:

Section 3 of the 14th Amendment — the Disqualification Clause — expressly bars any person from holding "any office, civil or military, under the United States" if he "engaged in insurrection" against the Constitution after previously swearing to uphold it "as an officer of the United States." These terms definitely apply to Trump, and some Democrats are exploring the use of Section 3 against him.

In the Washington Post, Cliff Sloan and Brendan Gants wrote:

That category plainly includes Trump. As president, he took an oath to support the Constitution.

Seth Barrett Tillman and I address this issue in our new article, Is the President an 'Officer of the United States' for Purposes of Section 3 of the Fourteenth Amendment?. We write that there is some evidence to support our position. And we acknowledge there is some evidence on the other side. But nothing here is "definite" or "plain."

To pre-empt an obvious, and extraneous response, the Jefferson Davis example is a red herring. Davis was a Senator, a position that was expressly enumerated in Section 3's jurisdictional element. Trump took one, and only one constitutional oath–the presidential oath of office.