Yoo and Malcolm on Section 3 of the 14th Amendment

Yesterday I listened the Federal Society webcast featuring Professor John Yoo and John Malcolm of the Heritage Foundation discussing legal and constitutional issues of presidential power. Part of the discussion focused on section 3 of the 14^thamendment and whether that provision is applicable to former president Donald Trump. Yoo expressed a great deal of skepticism that section 3 applies to the presidency at all (and Malcolm agreed, though somewhat less definitively). Yoo pointed to the language of section 3 which (you may recall) says:

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, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

(emphasis added).

Professor Yoo maintained that the fact the president and vice president are not expressly mentioned in either the list of “banned” or of “disqualification triggering” offices/positions is strong evidence that those offices are not covered by section 3. He particularly noted that because section 3 explicitly mentions presidential electors the framers of the 14^th amendment must have made a conscious decision not to include the presidency and vice presidency.

With all due respect, this makes sense only if you haven’t thought about this issue more than a moment or two. To begin with, if the framers of the 14^th amendment wished to exclude the presidency and vice presidency, they must have had a reason for doing so. I have not heard anyone suggest a plausible reason (or an implausible one, for that matter) why the president and vice president would be excluded, while presidential electors and other relatively insignificant positions would be included. See Saikrishna Bangladore Prakash, Why the Incompatibility Clause Applies to the Office of the President, 4 Duke J. L. & Pub. Pol’y 35, 43 (2009) (noting that reading section 3 “to require a congressional waiver for former confederates serving as postmasters or corporals but not to require such a waiver when a turncoat wished to serve as President would be rather strange”).

Moreover, there is a very simple explanation as to why the framers did not expressly include the president and vice president. The list of disqualification triggering offices/positions tracks the list in the Oath Clause (art. VI, § 1, cl. 3), which makes sense because disqualification is triggered by committing insurrection, etc. after taking the oath. And the Oath Clause does not specifically list the president and vice president among those who shall take the oath. Instead, it requires the oath for “all executive and judicial Officers . . . of the United States” which has until recently been universally understood to include the president and vice president.

To be sure, Professors Tillman and Blackman claim that the Oath Clause does not apply to the president or vice president, pointing out that Article II separately provides an oath for the president. This leaves the rather odd result that the vice president would have no constitutional oath requirement. If you are interested, you can read their lengthy discussion of the history of the vice presidential oath and their explanation as to why it was not required by Article VI. See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 424-33 (2023). The one thing to note in this discussion is the complete absence of any evidence that anyone, including but not limited to the framers, ever expressed the view that Article VI does not, or was not intended to, cover the vice president. Instead, Tillman and Blackman say “it is not entirely unreasonable to think that the framers simply forgot to account for the Vice President in the Oath or Affirmation Clause.” Id. at 433.

Granting for the sake of argument that this is not “entirely unreasonable,” it still seems to me entirely unreasonable to charge the framers of the 14^th amendment with an understanding of the words of the Oath Clause that literally no one expressed prior to Professor Tillman doing so nearly a century and a half after the 14^th amendment was ratified. Even if there is a plausible reading of the Oath Clause that excludes the president and vice president, what sense does it make to think that the framers of the 14^th amendment adopted this meaning, which was contrary to decades of historical practice and understanding?

Fortunately, we do not have to answer this question based solely on common sense, seeing as that seems to be in short supply these days. As it happens, the debate on section 3 featured what I have previously described as the closest anyone has ever come to expressing the Tillman-Blackman theory prior to Tillman himself. During the Senate debate on June 13, 1866, Senator Johnson raised a concern that section 3 did not expressly cover the president and vice president:

Mr. Johnson. But this amendment does not go far enough. I suppose the framers of the amendment thought it was necessary to provide for such an exigency. I do not see but that any one of these gentlemen may be elected President or Vice President of the United States, and why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation. No man is to be a Senator or Representative or an elector for President or Vice President–

39 Cong. Globe 2899 (1866) (emphasis added).

Here it is important to understand why Senator Johnson is raising the concern that he does. This is explained by the immediately following colloquy, which apparently was sufficient to allay the senator’s concerns:

Mr. Morrill. Let me call the Senator’s attention to the words “or hold any office, civil or military, under the United States.”

Mr. Johnson. Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am; but I was misled by noticing the specific exclusion in the case of Senators and Representatives.

39 Cong. Globe 2899 (1866) (emphasis added).

Johnson did not dispute that the president (and vice president) were covered by the language of section 3, but he was surprised by the fact that senators and representatives were specifically enumerated, while the president and vice president were not. In other words, it was not that he thought the terms “officer of the United States” or “office under the United States” were insufficient to cover the president and vice president, but that he did not understand why these terms did not also cover members of Congress. That confusion, which we might refer to as a “Sarah moment” (see this podcast if you don’t get the joke), is understandable because the reasons that members are not covered by these terms are obscure and historically contested. But this is not the same as (indeed it is the opposite of) thinking that the president and vice president are not officers of the United States and/or do not hold offices under the United States.

If all of this is not sufficient to convince Yoo and Malcolm that the president is covered by section 3, they may want to think about some of the other implications of the Tillman/Blackman theory. Apart from the odd result of exempting the vice president from a constitutional oath requirement, it would mean that one could be president or vice president and a member of Congress at the same time (because the Incompatibility Clause would not apply), something that would come as a surprise to senators (Warren Harding, John F. Kennedy, Barack Obama, Joe Biden and Kamala Harris) who have resigned their seats to assume the presidency or vice presidency. This “utterly implausible proposition,” to use Professor Calabresi’s words, is also one that occurred to no one else before Professor Tillman. See Seth Barrett Tillman & Steven G. Calabresi, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134, 141 (2008).

Another utterly implausible result of the Tillman/Blackman theory is that the Disqualification Clause would not apply to the presidency or vice presidency so that “the Senate through the impeachment process could not prevent a convicted officer from later serving as President or Vice President.” Prakash, 4 Duke J. L. & Pub. Pol’y at 41. This is such an outlandish position that Trump’s lawyers did not argue it in either impeachment, though it would have been quite beneficial to their client in the second one particularly (where the only point of trying the then former president was to disqualify him from future office).

Finally, the Foreign Emoluments Clause would not apply to the president or vice president, allowing them to receive from foreign powers not only monetary and other gifts, but offices and, worst of all, titles of nobility, something that would have been utterly inconceivable and intolerable to the founders. Particularly given that the framers were concerned about the potential for foreign bribery of a president, this reading “makes little sense.” Prakash, 4 Duke J. L. & Pub. Pol’y at 42. It is, moreover, contrary to the longstanding position of the Office of Legal Counsel (not usually known, as Professor Yoo can attest, for bending over backward to find limitations on the president’s power). Again, this is a position so radical that Trump did not assert it at any point during his presidency or in any of the lawsuits brought against him for alleged violations of the Foreign Emoluments Clause.

So in conclusion I am again begging constitutional experts to stop shooting from the hip on these important questions, lest the public lose whatever confidence it has remaining in the legal profession.