Griswold v. Anderson: The Section 3 Case Before The Colorado Supreme Court

[This post is co-authored with Professor Seth Barrett Tillman].

On December 6, the Colorado Supreme Court heard oral argument in Griswold v. Anderson. In this case, a number of Colorado voters asked the Court to order the Colorado Secretary of State to remove Trump from the primary ballot. The trial court adopted our intellectual position: that the President is not an "Officer of the United States," and therefore is not subject to Section 3 of the Fourteenth Amendment. We did not file an amicus brief with the trial court. The trial court's decision was appealed directly to the Colorado Supreme Court, and we did file an amicus brief before that court. Our brief argued that Section 3 requires federal enforcement legislation, and that the President is not an "Officer of the United States" as that phrase is used in the Constitution of 1788 and Section 3. 

The arguments stretched more than two hours, perhaps as much as 1/3 of that time was devoted to the officer issue. The justices asked both sides probing questions, and seemed to understand the nuances of the textual arguments. We recognize that some well-known professors insist that this argument is frivolous and not even worth discussing. Indeed, at the Federalist Society National Lawyers Convention a few weeks ago, Judge Michael McConnell predicted that judges would not accept this argument. The Colorado Trial Court ruled exactly one week after McConnell's remarks. 

The Justices raised many questions and issues: e.g., state election law, the political question doctrine, the meaning of "insurrection," and the interplay between the First Amendment and Section 3. But in this post, we will highlight some of the questions posed to both sides about the officer issue. We think these questions demonstrate why the officer-issue is, and always will be, one that requires careful legal judgment and cannot be dismissed out of hand. 

Who are the Officers of the United States?

The Constitution of 1788 uses the phrase "Officers of the United States" in four provisions: the Appointments Clause, the Impeachment Clause, the Commissions Clause, and the Oath Clause. Each of these provisions was discussed during the oral argument.

Justice Hood asked about the general Oath Clause in Article VI and the Presidential Oath Clause in Article II. The former provides, "The 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, shall be bound by Oath or Affirmation, to support this Constitution." The latter provides, "Before [the President] enter on the Execution of his Office, he shall take the following Oath or Affirmation: — "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'" Justice Hood inquired, "What about the use of 'officer of the United States' in Article Two and Article Six in a way that seems to be distinguished from the President." And Justice Márquez asked, "why doesn't Article Six refer to the President specifically, then?"

Justice Gabriel pointed to the Appointments Clause. He asked, "What do we do with the Free Enterprise Fund case where the Chief Justice said people don't vote for officers of the United States?"

Justice Hart suggested that it would make sense to "put together" the Oath Clause and the Commissions Clause. She observed that "nowhere in any of the references to Officer, does the Constitution list the president." Rather, Justice Hart asked, do these provisions "suggest that the President is not an officer because he's never listed as one, and he Commissions all of them." We believe that Justice Hart announced exactly the right approach: each clause cannot be read in a vacuum.

Later in the proceeding, Justice Gabriel asked, "what is the president an Officer of"? Of course, the President is not an officer of any state or of foreign country. Wouldn't it have to be the case that the President is an officer of the United States? David McKnight's influential treatise observed 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.'" In Mississippi v. Johnson (1866), the Supreme Court observed that "the President is the executive department." And in Trump v. Mazars (2020), the Supreme Court described the presidency in the same fashion: "The President is the only person who alone composes a branch of government." (All of these authorities are developed in our NYU Journal of Law & Liberty article.) At the Colorado Supreme Court's oral argument, Scott Gessler, Esq., the attorney for former-President Trump, gave a somewhat different answer—but one which is consistent with our (Blackman and Tillman's) publications. Gessler said the President is a constitutional officer. That is, "officers of the United States" include, by contrast, only statutory officers. And that is why elected apex federal officials, including the President, Vice President, Senators, and Representatives, are not "officers of the United States."

Does the Constitution refer to the President as an "Officer of the United States"?

Let's get the easy part out of the way. The Constitution refers to the Presidency as an "Office." From that text, some have inferred that the President is an "officer," and from the latter still others have inferred that the President is properly characterized as an "officer of the United States." If the Section 3 case were a football field, that argument might get you a few yards. 

By contrast, we think the inquiry should start with a differently. We think the more probing and textually sound question is: Does the Constitution refer to the President as an "Officer of the United States" and to the Presidency as an "Office . . . under the United States"? During oral argument, Justice Gabriel asked that exact question: "Can you cite me a provision in the Constitution where the presidency is defined as an 'officer of the United States' or an 'office under the United States'? Yes, it says, holds this 'office' repeatedly. . . . I'm not sure it says ever the President is an 'officer under or of the United States'." Justice Gabriel is correct. No such provision exists.

Jason Murray, counsel for the plaintiffs-appellants (the voters), pointed to the Incompatibility Clause. It provides: "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." And he drew two inferences from this provision. First, Murray explained, in the Incompatibility Clause, the phrase "Office under the United States" would "pretty clearly include the president." He added, "basic separation of powers principles" would "[t]ell us that the president can't be a sitting member of Congress." Second, Murray stated that the Incompatibility Clause "tells us that Senators and Representatives don't hold" an "Office under the United States," because it would be "contradictory to saying members of Congress hold an office."

This exchange was quite revealing. The first argument is premised on a flawed assumption: the Incompatibility Clause was not designed as a separation of powers provision. Rather, this Clause was modeled after a similar provision in English law that barred the monarch from rewarding/bribing members of parliament with appointments to offices under the crown. There was no tradition of the King appointing members to be King or to succeed the King. A similar provision existed in the Articles of Confederation which lacked any resemblance to a traditional three-branch separation of powers governmental structure. The Confederation's national government only had a unicameral legislature. Thus, it is a mistake to view the Incompatibility Clause as a modern-day separation of powers provision. (We cover this ground in Part IV of our series.) We do not suggest that a President could concurrently hold a senate seat. Rather, our point is that if the Constitution forbids that result, it is not the text of the Incompatibility Clause which is doing the work. In much the same way, the text of the Constitution does not prohibit the Vice President from presiding at his own impeachment trial, but other elements of the Constitution may perform that function.

Murray's second argument draws an inference from the words used in a single provision: if a person holding an "Office under the United States" cannot be a member of Congress, it stands to reason that a member of Congress's position is not an "Office under the United States." That same mode of reasoning supports our positions with regard to the provisions that use the phrase "Officers of the United States." For example, if under the Appointments Clause, the President appoints the "officers of the United States," then the President is not an "officer of the United States." If under the Commissions Clause, the President commissions "all the Officers of the United States," and he does not commission himself, then he is not an officer of the United States. Both of these two observations undermine the plaintiffs-appellants' reading of the Constitution.

Mr. Murray offered one other way to distinguish the President from members of Congress. He said that Members of Congress "vote as part of a collective body," so therefore [they] do not "exercise some kind of continuing position of authority." By contrast, Murray said, the "President as the Chief Executive Officer" apparently does exercise a continuing position of authority, and does not act collectively. We have no idea what this argument means. Members of Congress, like the President, serve fixed terms. And Murray offered no support for the position that service in a "collective body" has any bearing on whether a person is an officer. Judges of the Supreme Court vote as part of a collective body. They are officers. Who doubts this?

For more than a decade, those who disagree with our position have been forced to simply make stuff up. One of our favorites is that President Washington's inauguration was akin to a coronation, so there was no need for him to commission himself. The far simpler answer, then and now, is that the President is not an "Officer of the United States."

Bizarre Consequences?

Mr. Murray pointed to what he described as "bizarre" consequences for finding that the presidency is not an "Office . . . under the United States." First, he suggested that the presidency would not be subject to the Religious Test Clause, and the government could "require the president to be a Jehovah's Witness." This argument is plainly wrong, although it has been raised repeatedly in the last several years. The Religious Test Clause provides: "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." In our view, the president holds a "public Trust under the United States." Indeed, every elected apex federal official holds a "public trust under the United States." Murray had already argued that members of Congress did not hold an "office." If Mr. Murray were correct that members of Congress do not hold an "Office . . . under the United States," then representatives and senators would need to fit in the category of "public Trust" to fall within the scope of the Religious Test Clause's text. We think he would agree. And the same reasoning extends the scope of the Religious Test Clause to the presidency—the Religious Test Clause applies to the President because the President holds a "public trust" and not because the presidency is an "office."

Mr. Murray also pointed to the Foreign Emoluments Clause. It provides "And no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." If the presidency is not an "Office . . . under the United States," then the President "can go to a foreign prince and ask them for a title of nobility." Murray said "those results are just so counterintuitive to our constitutional structure." If members of Congress do not hold an "Office . . .under the United States," as Murray argued, then Representatives and Senators also would be exempt from the Foreign Emoluments Clause. Would that result also be "so counterintuitive to our constitutional structure"? (During the Foreign Emoluments Clause litigation, CREW—the Plaintiff in this case—argued that members of Congress did hold "Office . . .under the United States. We see a tension in CREW's positions, then and now.)

Scott Gessler, Trump's counsel responded on point: 

How could you possibly believe a president would not be part of the [Foreign] Emoluments Clause? Well, I would suggest you walk into Mount Vernon, and you will see above the fireplace a full-length portrait of King Louis . . . the XVI. That was given to George Washington, by the French government. And no one batted an eye, it was never viewed as a violation of the Emoluments Clause, because no one thought that it applied to George Washington, there's also the key to the Bastille that was given [to] him by a representative of the French government.

Throughout the entirety of the Foreign Emoluments Clause litigation, no one wanted to talk about George Washington. Judge Peter Messitte's since-vacated decision ignored Washington and the diplomatic gifts he received, as well as Jefferson and the gifts he received from foreign governments. In short, President Washington received, accepted, and kept valuable gifts from French diplomats and French government officials. He never asked for congressional consent to keep those gifts. And neither his contemporaries nor anyone else—until litigation based on the Foreign Emoluments Clause against former President Trump began—suggested that these gifts were in any way in violation of the Constitution. The simplest explanation for the fact that no one complained is that no one thought Washington had done anything wrong. He had done no wrong because the presidency is not an "office . . . under the United States," and so, Washington's conduct was not controlled by the Foreign Emoluments Clause which extends only to persons holding an "office . . . under the United States." The point is that Murray (as do many others) assume that their legal and historical intuitions are co-extensive with the meaning of the Constitution, and that contrary intuitions are "bizarre." But any such view is falsified by Washington's conduct in office. When one's intuitions are contradicted by prior authority, it is possible that we are right and that the prior authority was wrong. But it is also possible that prior authority was right and that we are wrong. Establishing who is right and who is wrong is an intellectual project, and one does not carry out that project merely by asserting the rightness of one's own intuitions. 

In any event, the Colorado Supreme Court did not seem interested to talk about the Foreign Emoluments Clause. Justice Hood responded, "we've got enough on our hands without emoluments, right." We agree. In any event, if the President is not an "Officer of the United States," then the case is over—there is no need to determine whether the presidency is also an "Office . . . under the United States" under the Constitution of 1788 or under Section 3 of the Fourteenth Amendment or under both. 

The Constitution of 1788 and the Constitution of 1868

So far, our discussion has focused on the Constitution of 1788. Justice Hood asked, "is it really all that illuminating when we're talking about 80 years difference" between 1788 and 1868. Justice Hood inquired further, "shouldn't we be looking to other sources given that amount of time?" Jason Murray, counsel for the voters, made similar points. He said, "I think it's hard to say that the public that was considering whether to ratify the 14th amendment would have been going back and trying to see whether there was any ambiguity in the Commissions Clause or the Impeachment clause, they would have been relying on popular understanding and that understanding was very clear at the time." In other words, the meaning of "Officer of the United States" in Section 3 would not have been understood to be based on the meaning of that same phrase in the Commissions and Impeachment Clauses. 

Yet, when Murray had to defend the proposition that members of Congress did not hold office, he immediately pivoted to the Constitution of 1788. The approach should be consistent. Either the "office"- and "officer"-language in the Constitution of 1788 informs the meaning of Section 3, or it does not. The challengers cannot have it both ways. As we wrote in our Texas Review of Law & Politics article, it is difficult to evade the "gravitational pull" of the Constitution of 1788.

Still, in our view, evidence from the period contemporaneous with the ratification of the Fourteenth Amendment provides further support for our position. The best evidence, always, is the text. Remember, before you get to tradition or history, you start with the text. A common thread in the questioning focused on a simple textual point: the Framers of Section 3 expressly listed members of Congress, but did not list the President. Again, the text provides, in part, "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."

Justice Samour asked, "Doesn't it seem odd to list specifically 'Senator or Representative in Congress' and not specify President or Vice President in section three." The latter aren't expressly enumerated. Justice Samour asked further, "If it was so important that the President be included . . . why not spell it out? Why not include president and vice president . . . ? They spelled out Senator or Representative?"

Enforcement of the 13th and 14th Amendment

We focus on one colloquy which concerned enforcement of the Reconstruction Amendments. Justice Gabriel stated if Section 3 is not self-executing, then "then the Due Process Clause and Equal Protection Clause are [also] not self executing." He continued: "So Congress could nullify both of those by doing nothing." Justice Gabriel also pointed to the Thirteenth Amendment, which has the "same language" granting Congress enforcement authority. He said, "I don't think anyone would say that Congress needs to act to enforce the abolition of slavery."

Scott Gessler, counsel for Trump, cited the Tillman/Blackman amicus brief. We explained the issue there:

Griffin, the habeas applicant, sought to use Section 3 as a sword—i.e., offensively as a cause of action supporting affirmative relief, but he could not do so without enforcement legislation. By contrast, Davis sought to use Section 3 as a shield—i.e., as a defense in a criminal prosecution, and he could do so without enforcement legislation.

A ruling that Section 3 requires enforcement legislation would do absolutely nothing to the 13th or 14th Amendments. The 13th and 14th Amendment could always be used as defenses, absent any federal legislation. And 42 U.S.C. Section 1983, which is firmly established, is not going anywhere. As a general matter, Section 1983 is the legislation that permits enforcing constitutional rights offensively—as a sword or cause of action. 

***

We make a few final points. We have been in this game for some time, and have seen virtually every argument. Nothing raised in this litigation has surprised us. Indeed, the reaction to our position has become familiar. Those who reflexively scoff at our argument are relying on normative judgments about how government ought to be structured. Of course, the Incompatibility Clause bars the President from serving in Congress. Of course, the Foreign Emoluments Clause applies to the President. Of course, Section 3 disqualifies a person from the presidency. These of course arguments start with the conclusion and then work their way backwards. 

Yet, these arguments are in many cases inconsistent with the reason why various constitutional provisions were drafted; they run head-long into contrary historical practices; and, perhaps, most importantly, cannot be reconciled with what people who lived much closer to ratification said about the Constitution. Instead of working backwards, we work forward. We start with a theory: the Constitution's text adopts a global divide between appointed officers and elected officials. "Officer of the United States" and "Office . . . under the United States" refer to appointed positions—although the two categories are not precisely the same. By contrast, when the Constitution's text applies to elected officials, it does not rely on general "office"- and "officer"-language. To quote Justice Barrett in Brackeen v. Haaland, what is your theory to explain the "office"- and "officer"-language in the Constitution?

Comments

[damikesc]

Funny how "You know, he did not commit an insurrection at all" is not even considered, in spite of the fact that he did not do so.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Unlike, say, those autonomous zones which explicitly violated the Constitution's requirement that the federals guarantee a republican form of government.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

[Sarcastr0]

The legal precedent and concomitant history about the Guarantee Clause is a good read. Also shows you're wrong about what the law is.

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

[The Margrave of Azilia]

At minimum, a republican form of government means policymaking officials (lawmakers and chief executives) being elected by qualified electors, as distinguished from, say, inheriting their jobs from Daddy.

If judges make policy, they should be elected, too. But if not, election would be optional.

If rebels set up a supposed autonomous zone in the state, the question to me would be whether this is "domestic Violence" - requiring the state to file a request for aid before the feds step in - or an unrepublican government - requiring federal intervention even if the state authorities don't want intervention.

[Sarcastr0]

Should all you want, for most of our history this has been a political question.

[Milhouse]

"Political question" doesn't mean what you seem to think it means. All it means is that the judiciary has no authority over it.

[Sarcastr0]

Fair enough.
So when no national guard was sent in, and now the whole thing is very much over, what does that tell you?

[The Margrave of Azilia]

You’re picking a quarrel where I didn’t even say courts should decide.

[Sarcastr0]

So you're defining a right with no remedy.

OK, then, have fun.

[The Margrave of Azilia]

Look up Luther v. Borden, etc.

[Milhouse]

No, he's not wrong. The supreme court didn't say the Republican Guarantee clause didn't apply, it just said it was up to the president and congress to enforce it, not the judiciary. It told the petitioners, "You're right, but you've come to the wrong address; go to the president, and if he refuses to help you there's nothing we can do about it".

[Davy C]

Because that determination is very fact-dependent and would probably have to go to a jury, while this one is law-dependent and can be decided by a judge.

[CountmontyC]

It would also be law dependent to decide that before section 3 applies there must be determination of guilt first and that determination must be done in a court of law.

[Tim]

Sure, they're just not going to go with such an textual terrible argument.

[Brett Bellmore]

"He's factually innocent.", however relevant, is sort of boring from an academic perspective.

You'd think the due process question would generate more interest, though.

[bacchys]

That would not be a fact. He did commit insurrection.

Take your head out of his orange ass.

[CountmontyC]

Can you point to the court case where he was convicted of insurrection? Because until he is convicted he is innocent of any such charges.

[Sarcastr0]

That's true in a court of law. But this is not a court of law.

[CountmontyC]

If you want to remove someone's rights it should take more than just a "because I believe he is guilty." There hasn't even been an official declaration that what happened on 1/6 was an insurrection ( and there never will be because then every other riot could be declared one and that would include BLM/Antifa riots). Playing fast and loose with definitions of words and laws is a great way to destroy faith in government.

[Stephen Lathrop]

COUNTMONTYC, because no one has any right to office, or eligibility for office, Trump has no right to office or to eligibility, and thus cannot be deprived of a right to office or eligibility which he never had. Even when Trump (or any other president) held office, he held it as a gift, not as a matter of right.

Tangentially relevant: in American constitutionalism office is a gift, which the sovereign People bestow or withhold at their pleasure. To do that is a sovereign power of the People, and thus cannot be constrained by courts or by the Constitution. Which makes it as good a definition of a non-justiciable political question as you can find.

As for your faith in government, on this one question you have misunderstood what your faith entitled you to believe. To suppose that due process, or separation of powers, or questions of rights, have anything to do with exercise of sovereign power is a mistake by you, not a betrayal by anyone else.

[Brett Bellmore]

True, Trump has no right to hold office. What we're talking about is a violation of the voters' right to vote for him, not his right to run.

[Stephen Lathrop]

Bellmore, voters as individuals have no right to vote for a candidate decreed unqualified by the joint popular sovereign. Voters also do not vote as a matter of personal right; they exercise instead a joint sovereign power which governments, including the courts, may not constrain or regulate.

[Brett Bellmore]

Au contraire: Prior to abuses enabled by the adoption of the Australian ballot, if you, as an individual, had the right to vote, you had the right to vote for whomever you damned well pleased.

It's only very recently, in historical terms, that governments in the US have presumed to tell people who they were allowed to vote for. Eliminating the option of write in votes is a very recent development indeed.

[not guilty]

Brett, suppose Bill Clinton were to run for a third term as President. Would it violate his supporters' right to vote for him if a state official were to strike his name from appearing on that state's ballot?

You may want to read Lindsay v. Bowen, 750 F.3d 1061, 1063-64 (9th Cir. 2014), before answering that.

[Brett Bellmore]

Is having been President twice before a crime? Not to my knowledge.

That’s the decisive issue, so far as I’m concerned. Insurrection is a crime. It was a crime before the 14th amendment was written, and the crime carried disqualification from office as one of its penalties.

That law was written after the Civil war began, and, like the Civil rights act that was enacted about the same time, the constitutional grounds for imposing that penalty were awfully dubious. Where was the enumerated power it was an exercise of?

After the Civil war ended, the Union Congress knew that sooner or later the judiciary would have to be allowed to function normally again, that these acts would be subject to judicial review, and that, most likely, they’d be found wanting. The 14th amendment was intended to fix that.

Essentially the Confiscation acts and Civil rights act were 14th amendment enabling legislation, only enacted out of order.

[not guilty]

To no one's surprise, you are dancing around the question I posed. Would it violate Bill Clinton supporters’ right to vote for him if a state official were to strike his name from appearing on that state’s ballot? Yes or no?

[CountmontyC]

If the Democrats want to nominate Bill Clinton in 2024 I would say state officials could not remove his name from the ballot and the Democratic faithful could vote for him all that they want. If course he could never assume office should be somehow win as there would be three stages where he would likely face the fact that he is unquestionably ineligible. The first would be when the electoral college met and the honest electors knowing he is ineligible would at the very least abstain from voting for him, next would be on January 6 when Congress meets to count the electoral votes and the opposition challenges all of the electoral votes cast for him with any honest consideration of the matter being he is ineligible and Congress and the VP tossing those votes and finally SCOTUS could be brought in to the fray and after actual hearings rule that the 22nd Amendment barred him from another term. In other words it would not be state officials deciding eligibility for office but federal officials acting under the Constitution and the law. State officials can basically only limit access to the ballot by setting minimum benchmarks of ballot access such as the political party having received certain percentages of the vote in the past or the candidate showing significant enough support by meeting a certain number of citizens signatures. State officials don't decide eligibility for federal office.

[not guilty]

As I suggested above to Brett, take a look at Lindsay v. Bowen, 750 F.3d 1061, 1063-64 (9th Cir. 2014).

[CountmontyC]

Actually he does have a right to be eligible for office. The Constitution sets the standard as being 35 or older and a natural born citizen. Does he meet those qualifications? Yes he does. Now there is an attempt to take away his eligibility based upon section 3 of the 14th Amendment but to utilize that provision I would say requires due process and not merely a state official declaring someone ineligible. In our system rights being removed generally requires a trial of some sort. Until there is such a trial the only standard is age and citizenship.

[not guilty]

.

Now there is an attempt to take away his eligibility based upon section 3 of the 14th Amendment but to utilize that provision I would say requires due process and not merely a state official declaring someone ineligible. In our system rights being removed generally requires a trial of some sort. Until there is such a trial the only standard is age and citizenship.

Uh, there was a five-day bench trial in Denver focusing on whether Donald Trump engaged in insurrection (among other issues). Trump has had a full measure of due process.

[CountmontyC]

Was Trump on trial there? Did he face charges of insurrection? No and no are the answers. The question before the court there was did a state official have the authority to declare Trump ineligible under section 3 of of the 14th Amendment and if that section applied to the POTUS. It was a civil trial not a criminal one.The Colorado court wouldn't even have the authority to rule on if Trump was guilty of the federal charge of insurrection. This is especially true since the supposed crime occurred thousands of miles from Colorado.

[not guilty]

Donald Trump was an intervenor in the Colorado trial. His counsel cross-examined the petitioners' witnesses and presented witnesses of his own on Trump's behalf. Issues in a civil suit are framed by the pleadings. One of the issues necessary to the trial court's decision was whether Trump in fact engaged in insurrection.

Did you read Judge Wallace's final order before commenting? https://www.courts.state.co.us/userfiles/file/Court_Probation/02nd_Judicial_District/Denver_District_Court/11_17_2023%20Final%20Order.pdf Yes or no?

[CountmontyC]

So Trump was not convicted in a criminal trial. It was a civil trial in a state court ( meaning even if it were a criminal trial it would have been out of the court's jurisdiction). So no conviction of insurrection means no disqualification. Of course if you want state election officials to have that power perhaps a red state secretary of state could disqualify Biden for allowing the invasion of the southern border or start disqualifying Democratic politicians who supported the BLM/Antifa riots. Florida could disqualify seven House Democrats and Texas twelve more.

[not guilty]

Do you have any legal authority that a criminal conviction of insurrection is a prerequisite to disqualification under the Fourteenth Amendment, § 3? Any statute? Any judicial decision? Any treatise?

FWIW, Otto Yourazz and ipse dixit are not legal authorities.

And again, did you read Judge Wallace’s final order before commenting? Yes or no?

[not guilty]

Still waiting, CountmontyC.

[CountmontyC]

The whole section 3 argument by you leftist morons is Otto Yourazz. In the USA the presumption is innocent until proven guilty so before any penalty is imposed it requires a conviction of a crime and not just a "we know that he is guilty." And the finding by a judge in a civil trial is not a conviction and that is especially true when it's a federal charge, a state judge and the court involved has no jurisdiction. You are aware civil trials have different standards of evidence than criminal trials right ? And you are aware that a judge's opinion in the opinion of a civil trial carries zero weight as far as counting as a criminal conviction? This is especially true when it's a state judge commenting on a federal crime that is alleged to have occurred thousands of miles outside of that judge's jurisdiction.

[not guilty]

So you don't have any legal authority. Man up and admit it.

Disqualification under § 3 is not a criminal penalty, no matter how many times you repeat your ipse dixit assertion that it is.

[Don Nico]

And neither you nor I can make such a declaration with any authority

[Milhouse]

A conviction is unnecessary. Whether someone has in fact participated in an insurrection doesn't depend on whether they've ever been charged with it. Even a presidential pardon is probably not enough to remove this disability; but certainly an executive decision not to prosecute would not be enough.

The clause itself reserves the power to remove the disability to congress, which exercised that power in 1872 for "all persons" except those listed. Trump's not on the list, so even if all other arguments failed, that one would be enough to dismiss this case.

[not guilty]

The Reconstruction Congress removed disqualifications under § 3 for many persons who had never been convicted of any crime. If criminal conviction of rebellion or insurrection is a condition precedent of disqualification, why did Congress effect such removals?

[Brett Bellmore]

The reconstruction era Congress did a lot of shit that would have CAUSED a civil war, if they hadn't just won one, and been doing it to the losers. Probably the most terrifying thing about the lawfare against Trump is how many supposedly smart people don't seem to grasp that.

AFTER Reconstruction, and before the implacable drive to get Trump by any means necessary, we had one solitary case of Section 3 enforcement: Victor Berger.

He was allowed to run, put on the ballot, his votes got counted, he was declared the winner, and then Congress refused to seat him after he'd been convicted of espionage in a criminal trial.

And when the conviction was overturned on a technicality, they seated him

THAT'S the precedent we should be following, the one that wasn't set by a government that was scarcely even bothering to pretend they were complying with the Constitution.

[Stephen Lathrop]

Bellmore both legal precedent and government action are irrelevant. The government has no legitimate constitutional agency to bestow the gift of office. That is done by the jointly sovereign People acting at pleasure, on a case by case basis.

The Constitution is a tool of the sovereign to constrain the government; the Constitution does not constrain the sovereign. To suppose otherwise is to stand American constitutionalism on its head.

[Brett Bellmore]

I agree that the people are the ultimate sovereign under our political theory, such sovereignty as the government exercises is merely delegated.

The constitution constrains that delegation.

But this whole "sovereign People acting at pleasure" business elides the question of how you DETERMINE that the sovereign People have acted, rather than just some randos in power claiming that the People have acted.

One way is to observe whether they're following those constraints, or blowing them off. Because those constraints, in theory anyway, did originally come from the people.

[David Nieporent]

.

The Constitution is a tool of the sovereign to constrain the government; the Constitution does not constrain the sovereign. To suppose otherwise is to stand American constitutionalism on its head.

Blah, blah. Lathrop is no different than a sovereign citizen; he has his personal ideas of how government works, and actual law be damned.

[David Nieporent]

.

The reconstruction era Congress did a lot of shit that would have CAUSED a civil war, if they hadn’t just won one, and been doing it to the losers.

Brett is a staunch originalist… except when originalism gets him results he doesn't like, and then it's different because reasons.

And when the conviction was overturned on a technicality, they seated him

I've called you on this misrepresentation before, but that won't stop you from repeating it, I guess. That is not remotely an accurate description.

[Brett Bellmore]

No, it's a perfectly accurate account of how it happened.

Now, they did say that they weren't bound by the judicial finding. That's because they were exercising their pre-existing constitutional power to determine the qualifications of their own members. But they sure as hell were being guided by it.

[ReaderY]

Well, the trial court in this very case found he had doneit as a factual matter.

Jefferson Davis and for that matter most disbarred confederates were never convicted in any court of law following criminal procedures. Davis was charged with treason, but was never tried or convicted.

So the original understanding was that a criminal conviction was not required. Given that, the fact that Trump got a court hearing was all that is required for Due Process.

More fundamentally, because under the Constitution states appoint presidential electors, states have independent authority to impose whatever qualifications they want. This means they can give Section 3 their own, more expansive interpretation if they want.

[CountmontyC]

The Colorado state court convicted Trump of a federal crime? I didn't know state courts could do that. How did it do that? Did it give him the full due process of a criminal trial? Or did it hold a civil trial about another matter and the judge simply said in her opinion she believes Trump is guilty of insurrection?

[Krayt]

Of course he's an officer. What should not be allowed is removal, especially by motivated partisans on a state by state basis, where you just need a few True Believers to knock him off one or two purple states to throw the election, absent a national concesus about some insurrection.

[bacchys]

If he's an officer, he's subject to the provisions, which Blackman can't admit.

Since putting candidates on the ballot is done state-by-state, of course the decision on who is qualified is made state-by-state.

[Nameless But Highly Opinionated]

Agreement here.

SCOTUS can neither force a state to take him off, nor force a state to put him on.

Congress can refuse to seat him, though. And Congress could remove disability at any time.

[CountmontyC]

Actually the SCOTUS can have a lot to say on the issue. U.S. term limits vs Thornton which would be similar since it involved ballot access.

[Stephen Lathrop]

No. SCOTUS does not have a lot to say. In the case you cite, it had one thing to say: that state constitutional requirements for federal office must accord with the U.S. Constitution. In the instance discussed here, the relevant text is the 3rd section of the 14A. States remain in accord with that if they disqualify insurrectionists from ballot access for want of federal qualifications to hold office.

[Don Nico]

No. SCOTUS does not have a lot to say.

Because you say so. Who are you anyway?

[DJK]

SCOTUS doesn't have a lot to say about a provision of the FEDERAL Constitution? Their opinion is the only one that matters.

[DJK]

"States remain in accord with that if they disqualify insurrectionists..." That kinda presupposes who enforces Section 3, no? Methinks SCOTUS will have a lot to say about that question. You may be right in the end. But you're assuming the answer to an open question.

[CountmontyC]

So the SCOTUS can't say "you are interpreting a section of the US Constitution? You are also saying the SCOTUS has no say when it comes to qualification for any federal office at all? I cited a SCOTUS decision that would be very relevant and that decision went against states deciding qualifications that only affected federal candidates running for office to represent that state. Now imagine saying that a candidate for an office representing all of the states and saying SCOTUS has no say in the matter. You should be embarrassed to make such a claim.

[Alpheus W Drinkwater]

Blackman's argument is that the section does not apply to the President. But even if it did, it would still require Congressional enforcement, he disagrees with the assertion that the section is self-executing.

Personally, I think both arguments are clearly wrong. We'll see what the people who's opinions count think.

[Stephen Lathrop]

Drinkwater, I thought the bloggers and commenters were in disagreement about whose opinions count. Do you think otherwise?

[Don Nico]

yours certainly doesn't
Drinkwater makes the only sensible comment

[Alpheus W Drinkwater]

I guess that by “count,” I mean who’s opinion will end up being enforced. Which will be judges at some level. Unless Congress sees fit to step in and remove the restriction as it applies to Trump.

[iowantwo]

"No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military,"

The enumeration details those covered by the amendment.

Senators and Representatives or electors of President and Vice-President. . .

The drafters used the words. The drafters singled out the President and Vice President by not listing them. Only their electors.

It is clear the Amendment seeks to prevent lone jurisdictions or states, the power to disrupt the government with those plotting against a functioning government. Since the Executives need wide support across the nation, the framers trusted the People en mas, to act in the nations best interest.

Congress impeached Trump for Jan 6, but no articles listing insurrection. Trump has multiple indictments, but none for insurrection.
A very small minority are making the claim, but no jurisdiction has charged anyone with insurrection.

What if they had an insurrection, but zero insurrectionists showed up?
Because that is exactly what happened.

[Alpheus W Drinkwater]

That might be clear to you, but it certainly wasn't clear to the people framing the amendment. They seemed to think that "any office, civil or military," did include the President and Vice-President, and said so during the debates. Rep. Reverdy Johnson specifically asked why the amendment didn't list the President, was told that he was included in "any office," and conceded the point.

[David Nieporent]

Crickets from iowantwo.

[iowantwo]

They seemed to think that “any office, civil or military,” did include the President and Vice-President,

What they "thought" is irrelevant to what they wrote. As noted in other analysis, the term officer used in the Constitution, never refers to the President.
I think the strongest case is made by the constitution as a whole.
Conflicts are are always settled by the people or the peoples representatives. That is the purpose of Impeachment. Congress, by super majority, getting rid of the President. Why, with the 13 amendment, would not the same structure apply? Congress by super majority, citing the 13 amendment can get rid of the President.
As I noted the the 13th includes electors, omits President for the very reason that overturning the voters should be done by those in office that will answer for their votes in an election happening in less than 2 years.
Congress approves the election of the President every 4 years, why change the process? Or more to the point, why shouldn't Congress exercise the constitutional power they have AND be held to account by the people?

[BillyG]

We can also add from Article 2 Section 4:

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.

Which makes clear the Pres & VP are not officers either.

[Stephen Lathrop]

What should not be allowed is removal, especially by motivated partisans on a state by state basis, where you just need a few True Believers to knock him off one or two purple states to throw the election,

Krayt, indeed. Another troubling weakness of the electoral college. But for now the nation is stuck with it. Advocates for minoritarian government, and for the electoral college specifically, will have to learn to take the bad with the good, I suppose.

[Brett Bellmore]

There're no particular mystery how the 13th amendment can function, passively, without enabling legislation. It declares that there shall be no slavery in the US.

There can be no slavery without acts that would be crimes absent a defense that the victim was lawfully a slave. False imprisonment, for instance. You're keeping someone in chains? That's a crime, even without enabling legislation, and the 13th amendment means 'He's a slave!' Is unavailable as a defense.

[not guilty]

Suppose a state legislature makes it a crime for one person to enslave another person. Suppose a criminal defendant indicted under such a state statute moves to dismiss, claiming that the Thirteenth Amendment, § 2 vests power to enforce a slavery ban by appropriate legislation only in Congress.

Should the trial judge dismiss the indictment or not?

[iowantwo]

No because there is NO slavery.

What you described is kidnapping.

[not guilty]

Don’t fight the hypothetical. If the statute prohibits enslavement of another person, and if the indictment alleges enslavement and not any other offense, does the Thirteenth Amendment, § 2 require dismissal of the state court indictment? Yes or no?

[not guilty]

Still waiting, Iowantwo. Please show your work.

[Brett Bellmore]

Screw "don't fight the hypothetical"; Is this a hypothetical where the 13th amendment hadn't been ratified, maybe? There is no slavery in the US, legally speaking. There are crimes like false imprisonment, that people commit against folks they're treating as slaves, but they can't BE slaves.

The point here is that you don't NEED a law against slavery to punish somebody who's holding slaves in the US, because everything they'd be doing to try to do that would already be illegal, and could be prosecuted as an existing crime.

States pass pointless laws all the time, of course.

The only reason any enabling legislation might be needed in the case of the 13th amendment is because these crimes are state crimes, and some of the states themselves would be trying to violate that amendment.

[not guilty]

No, this is not a hypothetical where the 13th amendment hadn’t been ratified. You may notice that I ask, does the Thirteenth Amendment, § 2 require dismissal of the state court indictment? You know, the section that states "Congress shall have power to enforce this article by appropriate legislation."

In Brettworld, can a state criminalize enslaving another person or not?

[Brett Bellmore]

In Brettworld, there is no slavery in the US to criminalize, legally. "Slavery" is not a thing, legally, in the US. There is such a thing as kidnapping, false imprisonment, and so forth, though.

But states pass redundant laws all the time, and nothing stops them from making it a crime to attempt to enslave somebody, even if, legally, they're still not a slave.

You are, however, missing my point, which about self-execution. The 13th amendment didn't NEED enabling legislation to go into effect because imposing slavery inherently involves acts that are already criminal, just taking away the "but he's a slave" defense to those charges was all that was needed for it to have effect.

[not guilty]

Should my hypothetical state court indictment be dismissed on the accused's motion or not? That is a simple and straightforward question. Why are you unwilling to answer it?

[CountmontyC]

Can you offer a SCOTUS ruling that says that states are not allowed to pass or enforce laws against slavery? I can name. SCOTUS decision that says states can't add additional criteria for a candidate for a federal office ( I cited it earlier). Of course the 13 Amendment can be read to prohibit states from authorizing slavery but it would be difficult to say it prohibits a state from banning slavery. A more apt comparison in the debate over the 14th Amendment section 3 is could a state pass a law defining when a person meets the criteria for being ineligible based on the 14th Amendment ( which Colorado has not done). Such a law might pass constitutional scrutiny but it would be subject to SCOTUS review and a simple claim that the state officials can decide would almost certainly be ruled unconstitutional.

[not guilty]

The Thirteenth Amendment, § 2 states "Congress shall have power to enforce this article by appropriate legislation."

The Fourteenth Amendment, § 5 states "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

Each is a grant of federal power. Neither is a restriction upon state' powers. If the language read "Congress shall have the exclusive power to enforce", that would be a different matter.

A state court disqualifying a candidate for office for engaging in insurrection would not be adding any additional criteria to those specified in the Constitution. As SCOTUS recognized in U. S. Term Limits, Inc. v. Thornton:

As we explained, that term may describe more than the provisions quoted, supra, at 783:

"In addition to the three qualifications set forth in Art. I, § 2, Art. I, § 3, cl. 7, authorizes the disqualification of any person convicted in an impeachment proceeding from 'any Office of honor, Trust or Profit under the United States'; Art. I, § 6, cl. 2, provides that 'no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office'; and § 3 of the 14th Amendment disqualifies any person 'who, having previously taken an oath . . . 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.' It has been argued that each of these provisions, as well as the Guarantee Clause of Article IV and the oath requirement of Art. VI, cl. 3, is no less a 'qualification' within the meaning of Art. I, § 5, than those set forth in Art. I, § 2." Powell v. McCormack, 395 U.S. 486, 520, n. 41 (1969).

In Powell, we saw no need to resolve the question whether those additional provisions constitute "qualifications," because "both sides agree that Powell was not ineligible under any of these provisions." Ibid. We similarly have no need to resolve that question today: Because those additional provisions are part of the text of the Constitution, they have little bearing on whether Congress and the States may add qualifications to those that appear in the Constitution.

514 U.S. 779, 787-88 n.2 (1995) [boldface added].

It is helpful to actually read a judicial decision before citing it.

[CountmontyC]

Except there is a simple difference. The presidency is a federal office and thus state officials don't get to decide eligibility unless Congress passes legislation granting that power ( even that might not be constitutional). Slavery however can affect the residents of a state and states are empowered to protect their citizens. A state ban on slavery would only affect residents of that state and not any other. A state ban on slavery would be more tantamount to a state deciding a drinking or driving age whereas a state deciding eligibility for a POTUS candidate would potentially affect every state. And you might want to read your own quote as part of it says "convicted" so if both provisions are similar as you asset an actual conviction of insurrection seems to be required.

[not guilty]

The footnote in Thornton which I quoted refers to being convicted in an impeachment proceeding under Art. I, § 3, cl. 7 -- an entirely separate provision. Nothing in the Fourteenth Amendment, § 3 expressly requires a criminal conviction.

Pursuant to § 5 of the Fourteenth Amendment, Congress could impose criminal conviction as a necessary prerequisite to invoking disqualification under § 3. Congress, however, has not done so.

[The Margrave of Azilia]

-With the President-is-not-an-officer issue, I feel like Samuel Johnson proving the existence of matter by kicking a rock. Metaphorically, that is. I wouldn’t want to kick anything, but I’d like to say, “of course the President is an officer!” If there’s ambiguity, resolve that ambiguity in favor of keeping insurrectionary Presidents from holding further office.

-On the enforcement-legislation issue, the Trump theory would mean that a majority of Congress, by repealing – or failing to enact – enforcement legislation, could accomplish de facto, by majority, what it can only do by a two-thirds vote – namely, allowing disqualified persons to serve.

-But on the First Amendment issue, I see no reason to suppose that Sec. 3 overrides free expression – repeals by implication are supposed to be disfavored, right? And as I’ve had occasion to allude to w/r/t advocacy of genocide, the Brandenburg test speaks of seeking to cause imminent lawless action. If the Brandenburg test is to be abolished, let’s do it across the board, not just for universities and Trump.

[bacchys]

The Brandenberg test is easily met in Trump's case, so there's no need to abolish it. His speech was clearly intended to incite imminent lawless action, it was part of a criminal conspiracy to prevent Congress from doing its job, and, there was immediate lawless action in response to his speech. It's not speculation people could hear Trump's speech as calling for imminent lawless action: it produced imminent lawless action.

[Brett Bellmore]

You're fantasizing. The attack on the Capitol was pre-planned by people who weren't ordered to do it by Trump, began before Trump's speech was over, and the speech used perfectly ordinary political rhetoric, and included a request to protest peacefully.

[Nameless But Highly Opinionated]

Today's first amendment isn't the 19th century's first amendment.

[Purple Martin]

I once assumed that in his VC postings, Prof. Blackman often intentionally presents as:

dis·in·gen·u·ous / disənˈjenyo͞oəs/ adjective
Not candid or sincere, typically by falsely implying a lack of knowledge or understanding.

After several years of observation, however, I've come to favor a simple Occam’s Razor explanation: Just knowing less about something seldom hinders Josh’s publication of an opinion about it. But this post made me wonder whether he's purposefully not acknowledging unique circumstances of this Colorado State court case, or does he really not know? It is a closer question here than some, so I really don't know.

The obvious unique issue Josh avoids in this case is that state court Judge Sarah Wallace's ruling allowing Trump to remain on the ballot is based on the weaker of the two legal arguments available: Josh's Trump is not an Officer. The other potential legal finding Judge Wallace did not attempt to decide as a matter of law (because the 'Officer' gate was not first passed), is whether Trump performed an act of Insurrection per Amendment 14 Section 3.

Indeed, Judge Wallace specifically acknowledged the fact that her legal reasoning was a close call (much closer than Josh admits) that was certain to be appealed to the Colorado Supreme Court, and likely to SCOTUS. So she also developed a full set of facts and evidence an appeals court would need to address an Insurrection finding, were her Trump-favorable Officer ruling overturned.

She didn't try to hide what she was doing, writing a footnote describing how her findings of fact were purposefully structured in a way to reduce the potential of a need for the a higher court to remand back to her for further consideration:

The Court is denying Petitioners the relief they request [block Trump from Colorado's Presidential ballots] on legal grounds. Because of the Parties’ extraordinary efforts in this matter, the Court makes findings of facts and conclusions of law on all remaining issues before it. The Court does so because it is cognizant that to the extent the Colorado Supreme Court decides to review this matter, it may disagree with any number of the legal conclusions contained in this Order and the Orders that precede it. The Court has endeavored to give the Colorado Supreme Court all the information it needs to resolve this matter fully and finally without the delay of returning it to this Court.

Perhaps Josh thinks if he just disingenuously closes his eyes and ignores this inconvenient argument, nobody will notice.

[not guilty]

I am speculating here, but I wonder how much of Judge Wallace's refusal to disqualify Donald Trump was based on fear that if she did so, she would paint a huge target for assassination by the Trump cult on her back.

Her findings of fact included the following:

84. For example, violent far-right extremists understood that Trump’s calls to “fight,” which most politicians would mean only symbolically, were, when spoken by Trump, literal calls to violence by these groups, while Trump’s statements negating that sentiment were insincere and existed to obfuscate and create plausible deniability. 10/31/2023 Tr. 49:14–21, 59:7–17, 101:20–102:6.

85. The Court finds that Trump knew his violent supporters understood his statements this way, and Trump knew he could influence his supporters to act violently on his behalf. 10/31/2023 Tr. 126:11–19, 221:10–2

While Judge Wallace did not say so explicitly, it is reasonable to infer that she feared for her physical safety and bodily integrity if she ruled to disqualify Donald Trump from appearing on the ballot.

[Brett Bellmore]

That's certainly possible as a motive for finding some excuse not to apply it, just as hating Trump's guts for pre-existing reasons is possible as a motive for concluding that he was actually guilty of insurrection.

I'd certainly agree that, in legal terms, she pointed a gun at Trump, loaded it, cocked it, and invited the appeals court to pull the trigger in her place.

[Don Nico]

"While Judge Wallace did not say so explicitly..."
I hope that you are wrong.

[DJK]

Lol. That's a beautiful little fever dream you've got there. We had someone with actual plans to kill Brett Kavanaugh travel to his house with a pistol because of the Dobbs case. Didn't stop that opinion from coming through. I hope that this judge isn't so weak-kneed as to allow the thought of a possibility of the prospect of violence impact her decision.

[not guilty]

Judge Wallace delivered a punt that Ray Guy would envy.

[Purple Martin]

I don't disagree that it may be a purposeful pro-level punt, but on the level of likelihood, there seems no particular reason to think fear for her own safety was a greater factor than others.

[Milhouse]

We do not suggest that a President could concurrently hold a senate seat.

Why not? Other than the fact that a person would have to be insane to try to do both jobs at the same time, what constitutional provision forbids someone from trying? Suppose a senator were elected president, and wanted to stay on in the senate just long enough to vote to confirm some of his most important nominations, who might otherwise have trouble getting through; why can't he do it?

John Marshall couldn't have been both chief justice and secretary of state for very long, even in those days when neither job was as complicated as they are today, but he agreed to do it for just a month, and nobody seems to have objected. So obviously nothing in the constitution prevents it, and someone today could do it again, for just a short time.

[David Nieporent]

.

Why not? Other than the fact that a person would have to be insane to try to do both jobs at the same time, what constitutional provision forbids someone from trying?

Of course there is — the provision that Blackman pretends doesn't say what it says. His argument is, "Of course it's absurd to suggest that a president can simultaneously be a senator, but even though there's a provision expressly preventing it, I'm going to pretend it means something different and then just infer a ban from thin air."

[ReaderY]

Professor Blackman’s argument is based on the idea that the Presidency is unique. But there’s another unique aspect of the office of President that cuts against him.

Presidents are elected by electors who are appointed in any manner a state legislature directs. State legislatures have the power to appoint electors who pledge to support a specific individual. But that same power enables them to impose just about any additional qualification they want on the kind of individual that electors they will be permitted to support.

So even if Professor Blackman is right, a state is entitled to have a more expansive interpretation of Section 3 than the US Supreme Court might. If it wants to, it can use its own plenary constitutional power to appoint electors and/ir to control and direct their appointment, to disqualify and prohibit the appointment of electors who support individuals it deems insurrectionists under its own criteria.