The Volokh Conspiracy
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Offices Under the United States and the Oral Argument in Trump v. Anderson
Section 3 of the Fourteenth Amendment and the Incompatibility Clause both apply to "officers under the United States" and must thus mean the same thing
The oral argument today in Trump v. Anderson strongly suggests a Trump victory on the grounds advanced heroically by Josh Blackman and Seth Barrett Tillman. Many kudos to them both for the long and successful campaign that they have waged. The Court will likely reverse the Colorado Supreme Court based on Griffin's Case, the absence of congressional legislation enforcing Section 3, and the prudential and pragmatic arguments made in Section 3 of the Brief signed by Attorneys General Edwin Meese III, Michael B. Mukasey, and William P. Barr, as well as by me and Gary Lawson.
Justices Ketanji Brown Jackson and Neil Gorsuch made a valiant but unsuccessful attempt to get Trump's attorney to address the other plausible off ramp for the Supreme Court in this case, which is the argument that Section 3 does not apply to the President of the United States. They offered definitions of the phrase "officer of the United States" and of the word "office" and of the word "officer", but they never forced Trump's awful lawyer to say anything about the meaning of the phrase "office *** under the United States", which language appears in exactly that formulation in both Section 3 of the Fourteenth Amendment and in the Incompatibility Clause.
If the presidency is an "office *** under the United States" that covers Donald Trump under Section 3, of the Fourteenth Amendment, then it has to also be an "Office under the United States" for the purposes of the Incompatibility Clause, which bars Members of Congress from holding any "Office under the United States." That would mean that the Presidential Succession Act of 1947 is unconstitutional because it allows either the Speaker of the House of Representatives or the President Pro Tempore of the Senate to serve simultaneously as a Member of either House and to hold the Presidency in the absence of both a President and a Vice President, which Presidency is wrongly said to be an "Office under the United States".
The Founding Fathers included legislative officers in the line of succession to the President, in 1792, in the Second Congress, in which many framers of the Constitution sat. President George Washington signed the 1792 Presidential Succession Act into law disregarding a complaint by Rep. James Madison that legislative officers could not be put in the line of succession to the Presidency because doing so would violate the Incompatibility Clause. President Washington and the Framers in the second Congress did not think that the Presidency was an "Office under the United States" for the purposes of the Incompatibility Clause. This is dispositive proof that the Presidency is also not an "office *** under the United States" for the purposes of Section 3 of the Fourteenth Amendment.
