The Volokh Conspiracy

Professors Akhil Reed Amar and David Vikram Amar argue that President Donald Trump is covered by the phrase in the Fourteenth Amendment, Section 3, that disqualifies a person who holds "any office *** under the United States" from being eligible to be elected President, if he has engaged in an insurrection, after swearing an oath to support the Constitution.  The Amar brother's position is that the presidency is an "office *** under the United States", and that Donald Trump is disqualified from being elected President in 2024 even though the entire Republican Party overwhelmingly wants Trump to be their nominee.

The Incompatibility Clause of Article I, Section 6 says that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."  And, the Presidential Succession Clause of Article II, Section 1 says that in the event of a vacancy in both the presidency and the vice presidency "Congress may by Law [declare] what Officer [legislative or executive] shall then act as President."  For most of American history, the Speaker of the House of Representatives and the President Pro Tempore of the Senate have been ahead of the Cabinet in the line of succession to the presidency.  That arrangement is as American as apple pie.

Under Professor Amar's theory that the President holds an Office under the United States for the purposes of Section 3 of the Fourteenth Amendment, it is unconstitutional for Congress to put the Speaker of the House of Representatives or the President Pro Tempore of the Senate in the line of succession to the Presidency, as Congress has done since 1947, because doing so would violate the Incompatibility Clause.   (A Member of either House would unconstitutionally get to hold, simultaneously, their congressional seat and an Office under the United States while they served as Acting President).

In fact, the Presidential Succession Act of 1792, which was passed by the Second Congress, which was full of framers of the Constitution, and which was signed into law by President George Washington put legislative officers in the line of succession to the presidency because the Founding Fathers did not believe that the Presidency was an Office under the United States.  The Founding Fathers discussed and debated this very question, and James Madison lost while making the exact same argument that the Amar brothers make as to Section 3 of the Fourteenth Amendment that the Presidency is an Office under the United States.

The Amar brothers think that our current setup of having legislative officers in the line of succession to the presidency is unconstitutional as they argued in print in Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stanford Law Review 113 (1995-1996).  I once agreed with the Amar brothers on this issue but have since changed my mind.  I strongly doubt that the nine current justices of the Supreme Court realize that any ruling that Donald Trump is ineligible to be on the Colorado primary ballot will end up as a side-effect gutting the Presidential Succession law.

The Supreme Court in Trump v. Anderson should not hold that the Presidency is an office under the United States because, if it does so, the Presidential Succession Acts of both 1947, and of 1792, would be rendered unconstitutional, even though the Founding Fathers meant for legislative officers to be eligible to be put into the line of succession to the Presidency, and such legislative officers have been in the line of succession to the presidency for most of American history. The Amar brothers would repudiate 171 years of historical practice of legislative officers being in the line of succession to the presidency.  It is far more democratic to put elected Speakers of the House of Representatives and Presidents Pro Tempore of the Senate in the line of succession to the Presidency than it is to put un-elected Cabinet Secretaries in the line of succession.   The Amar brothers are just plain wrong in arguing that the President holds an "office *** under the United States" under Section Three of the Fourteenth Amendment.

They are also wrong in Trump v. Anderson in calling on the Supreme Court to let each of the fifty States have their own rule as to what constitutes an "insurrection".  The whole point of the Fourteenth Amendment was to rein in State power and to impose some uniform national rules.  This is especially needed with rules concerning eligibility to hold national offices.  See U.S. Term Limits v. Thornton, 514 U.S. 779 (1995); Powell v. McCormack, 395 U.S. 486 (1969).  Letting 1,000 flowers bloom on the fifty State Supreme Courts, as to presidential eligibility requirements, is more likely to produce a weed garden than it is the Rose Garden.

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

Michael Luttig, who served on the U.S. Court of Appeals for the Fourth Circuit, and as General Counsel of Boeing, has been one of the more vocal proponents of the view that Trump should be disqualified from the ballot. On January 29, Luttig was the lead signatory of an amicus brief to the Supreme Court, which was joined by Peter Keisler, Larry Thompson, Stuart Gerson, and Donald Ayer. Richard D. Bernstein served as counsel of record. 

On Tuesday, Keisler and Bernstein published a guest post on the Election Law Blog. Their Tuesday guest post responds to Trump's reply brief, which had been filed on Monday. And in turn, Trump's Monday reply brief advanced several positions about the Sinecure Clause and the Incompatibility Clause; we had developed the same lines of argument in our post on the prior Sunday. Today, Wednesday, we will respond to several arguments that Keisler and Bernstein made. And tomorrow, Thursday, the Supreme Court will hear oral argument in Trump v. Anderson. 

First, Keisler and Bernstein argue that the Sinecure Clause demonstrates that the words appoint and elect are used in the Constitution "interchangeably." They write, "The Text Of The Sinecure Clause Confirms That The Constitution Uses 'Appointed,' 'Elected,' And 'Chosen' Interchangeably." (And odd comments given that the Sinecure Clause does not use "chosen" at all. We will come back to "chosen" below.) This line of argument is part of their position that the President is an appointed "Officer of the United States" whose appointment is not provided for in Article II, Section 2. The Sinecure Clause, also known as the Ineligibility Clause, provides: 

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time. (emphases added)

On Sunday, we published a post about Section 3 of the Fourteenth Amendment and the Sinecure Clause. U.S. const. art. I, § 6, cl. 2. We see that Trump's reply brief advanced an argument based on the Sinecure Clause (p. 9); the substance of the brief's argument is the same as the one we put forward in our recent post on that clause. (p. 9.) Likewise, Trump's reply brief advanced an argument based on the Incompatibility Clause (p. 13); again, the substance of the brief's argument is the same as the one we put forward in our recent post on that clause. (p. 11).

Keisler and Bernstein contend that "elect" and "appoint" in the Sinecure Clause are used interchangeably. We draw just the opposite conclusion. Where the same sentence uses the phrase "appoint" and "elect," the presumption ought to be that those words have different meanings. Senators and Representatives are elected and "civil Office[s] under the Authority of the United States" are appointed. These words are not interchangeable. 

Read More

Today I participated in a Rappaport Forum discussion at Harvard Law School titled "Rule by One Judge: The Question of Universal Injunctions." My fellow participant was Professor Mila Sohoni, and our moderator was Professor Guy-Uriel Charles. It was an excellent discussion, and you can watch it here.

Two of the students who attended sent me this very interesting note afterwards, which I am posting with their permission:

Today at Harvard Law School's Rappaport Forum, Professor Guy-Uriel Charles moderated a fantastic conversation between Professors Mila Sohoni and Sam Bray on the legality of "universal injunctions." To highlight the real world stakes of the debate, Professor Charles asked the panelists why there's been a sudden uptick in universal injunctions in recent years. The answers highlighted the link between the increasing prominence of federal courts and the dysfunction of Congress.

Professor Sohoni pointed to the phenomenon of "old statutes, new problems" as one of the key drivers behind the recent spike. As she put it, we have to consider nationwide injunctions against the executive's "background level of illegality." As Congress fails to legislate on the issues that matter most, federal agencies step in to fill the void—often with only a tenuous claim to statutory authority.  Hence the uptick in controversial rules—and attendant universal injunctions—in matters relating to topics like gun control and contraception.

Professor Bray expressed concerns about the anti-democratic nature of universal injunctions: after all, a single district court judge places the policy priorities of a duly elected president on hold. If one shares Professor Bray's concerns, then one should think critically about reforming Congress so that it can live up to its legislative responsibilities. If Congress were capable of legislating once again, it would pass new statutes  to respond to new problems. There'd be less of a need for agencies to interpret outdated statutory authority in novel, aggressive ways. As a result, there'd be fewer occasions for single district judges to issue universal injunctive relief that places presidents' policy agendas on hold.

There's no single fix to Congress's retreat from relevance. In this fall's issue of National Affairs, we proposed one: reforming the Senate filibuster. Our proposal is simple: if the Senate can't clear a 60-vote supermajority threshold, it should instead just have to clear a simple majority threshold twice, with an election in between. As we explain in the article, this reform would empower Congress to legislate a bit more on the issues that matter, while also enhancing deliberation. It might even improve the overall tenor of our politics.

Turns out our proposal might also help make universal injunctions less frequent and less consequential.

Thomas Harvey & Thomas Koenig are students at Harvard Law School. Follow them on Twitter @Tom_Harvey94 and @thomaskoenig98.

Today, I spoke on a panel at the Heritage Foundation about Trump v. Anderson, the Section 3 case. My remarks begin around 44:45.

Tomorrow, the Supreme Court will hear oral argument in Trump v. Anderson. Both Seth Barrett Tillman and I will be attending. Today, the New York Times published a profile of Seth, and his important work that has led us to this moment. The article is titled, "A Legal Outsider, an Offbeat Theory and the Fate of the 2024 Election."

Here is the introduction:

In the world of American legal scholarship, Seth Barrett Tillman is an outsider in more ways than one. An associate professor at a university in Ireland, he has put forward unusual interpretations of the meaning of the U.S. Constitution that for years have largely gone ignored — if not outright dismissed as crackpot.

But at 60, Professor Tillman is enjoying some level of vindication. When the U.S. Supreme Court considers on Thursday whether former President Donald J. Trump is barred from Colorado's primary ballot, a seemingly counterintuitive theory that Professor Tillman has championed for more than 15 years will take center stage and could shape the presidential election.

The Constitution uses various terms to refer to government officers or offices. The conventional view is that they all share the same meaning. But by his account, each is distinct — and that, crucially for the case before the court, the particular phrase "officer of the United States" refers only to appointed positions, not the presidency.

If a majority of the court accepts Professor Tillman's rationale, then Mr. Trump would be allowed to appear on the ballot. At issue is the meaning of Section 3 of the 14th Amendment, adopted after the Civil War, which bars people from holding office if they participated in an insurrection after having sworn to uphold the Constitution as an "officer of the United States."

Professor Tillman, heavily bearded with black-rimmed glasses and a bookish demeanor, flew to the United States this week to watch the arguments. With Josh Blackman, who teaches at South Texas College of Law Houston, Professor Tillman submitted a friend-of-the-court brief and asked to participate in arguments, but the court declined.

The article quotes, among others, Akhil Amar, Mike Luttig, and Will Baude. I think Charlie Savage of the Times really captured Seth's essence. It has been the honor of a lifetime to work so closely with Seth. I've learned more from him than anyone else.

We'll see what tomorrow brings.

Update: Seth's article made it to the top, left-hand column of the Drudge Report.

I'm delighted to pass along this item from Prof. McConnell (Stanford), one of the leading American originalist scholars:

I most often agree with my good friends and casebook co-authors Will Baude and Michael Paulsen on matters of constitutional interpretation. But not about the attempted disqualification of Donald Trump for running for President. My friends published the opening salvo in the current debate with their 120-plus page article arguing for a "sweeping" interpretation of Section Three of the Fourteenth Amendment. The word "sweep" is in the title of their article, and "sweeping" was repeated over a dozen times. At every point when they faced an interpretive ambiguity, they opted for the most expansive interpretation.

I responded with a brief post on this site arguing against such a sweeping interpretation, on the basis of both democratic theory and originalist evidence. I later elaborated on those themes in an essay in Public Discourse, citing evidence that the Amendment was interpreted narrowly in the several years it was actually enforced.

A few days ago, Baude and Paulsen published a new post in which they suggest that my advocacy of a "narrow" interpretation violates the originalist norm that constitutional provisions "should not be interpreted with a thumb on the scales in favor of either a 'narrow' reading or an 'expansive' reading," but simply given the reading most plausible in light of its terms and original understanding.

Read More