The Volokh Conspiracy
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Today, a state District Court in Colorado rejected a Section 3 challenge to President Trump's eligibility. The court found that President Trump engaged in insurrection, but held that the presidency is not an "Officer of the United States" for purposes of Section 3. This is the argument that Seth Barrett Tillman and I have advanced. The full opinion is over 100 pages long. The analysis of the officer issue begins on page 95. Here is an excerpt, staring on p. 99:
311. On the other hand, Intervenors argue that five constitutional provisions show that the President is not an "officer of the United States."
• The Appointments Clause in Article II, Section 2, Clause 2 distinguishes between the President and officers of the United States. Specifically, the Appointments Clause states that the President "shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law." U.S. CONST. art. II, § 2, cl. 2.
• The Impeachment Clause in Article II, Section 4 separates the President and Vice President from the category of "civil Officers of the United States:" "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." U.S. CONST. art. II, § 4.
• The Commissions Clause in Article II, Section 3 specifies that the President "shall Commission all the Officers of the United States." U.S. CONST. art. II, § 3.
• In the Oath and Affirmation Clause of Article VI, Clause 3, the President is explicitly absent from the enumerated list of persons the clause requires to take an oath to support the Constitution. The list includes "[t]he Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States." US. CONST. art. VI, cl. 3.
• Article VI provides further support for distinguishing the President from "Officers of the United States" because the oath taken by the President under Article II, Section 1, Clause 8 is not the same as the oath prescribed for officers of the United States under Article VI, Clause 3.
312. The Court agrees with Intervenors that all five of those Constitutional provisions lead towards the same conclusion—that the drafters of the Section Three of the Fourteenth Amendment did not intend to include the President as "an officer of the United States."
313. Here, after considering the arguments on both sides, the Court is persuaded that "officers of the United States" did not include the President of the United States. While the Court agrees that there are persuasive arguments on both sides, the Court holds that the absence of the President from the list of positions to which the Amendment applies combined with the fact that Section Three specifies that the disqualifying oath is one to "support" the Constitution whereas the Presidential oath is to "preserve, protect and defend" the Constitution, [FN19] it appears to the Court that for whatever reason the drafters of Section Three did not intend to include a person who had only taken the Presidential Oath. [FN20]
[FN19] The Court agrees with Petitioners that an oath to preserve, protect and defend the Constitution encompasses the same duties as an oath to support the Constitution. The Court, however, agrees with Intervenors that given there were two oaths in the Constitution at the time, the fact that Section Three references the oath that applies to Article VI, Clause 3 officers suggests that that is the class of officers to whom Section Three applies.
[FN20] Whether this omission was intentional, or an oversight is not for this Court to decide. It may very well have been an oversight because to the Court's knowledge Trump is the first President of the United States who had not previously taken an oath of office.
314. To be clear, part of the Court's decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three. As Attorney General Stanbery again noted when construing the Reconstruction Acts, "those who are expressly brought within its operation cannot be saved from its operation. Where, from the generality of terms of description, or for any other reason, a reasonable doubt arises, that doubt is to be resolved against the operation of the law and in favor of the voter." The Reconstruction Acts, 12 U.S. Op. Att'y Gen. 141, 160 (1867) (emphasis added).[FN21] Here, the record demonstrates an appreciable amount of tension between the competing interpretations, and a lack of definitive guidance in the text or historical sources.
[FN21] The Court is mindful that Stanbery was considering disenfranchisement, not qualification for office, and that he was interpreting a statute he considered "penal and punitive" in nature; the Court nevertheless finds that the principle articulated, that the law ought err on the side of democratic norms except where a contrary indication is clear, is appropriate and applicable to the circumstances.
315. As a result, the Court holds that Section Three of the Fourteenth Amendment does not apply to Trump.
This argument tracks very closely the arguments that Seth and I have advanced for some time. We look forward to reviewing the opinion more carefully.