Author: Michael Stern

In my last post I explained why the terms “election” and “appointment,” as used in the original Constitution, should not be read as mutually exclusive. Today I will explain why that matters for Trump v. Anderson, the Colorado disqualification case currently pending before the Supreme Court.

But first I must note a surprising, and somewhat related, development. Professor Tillman has asked the Court for leave to participate in oral argument. I guess this was considered reasonable because the Colorado Supreme Court granted Tillman leave, through his counsel (Professor Blackman), to participate in its oral argument (though ultimately Blackman was unable to do). But still.

In any event, Tillman’s reasons for wanting to participate in oral argument relate in part to the subject of today’s post, as will be explained below.

The primary reason it matters whether elected officials are also “appointed” within the meaning of the Constitution relates to the question whether the president is an “officer of the United States.” The position taken by former president Trump, as well as by Professor Tillman and other amici, is that the term “officer of the United States” is defined (effectively, though not expressly) by Article II to include only those officers who are appointed pursuant to the Appointments Clause. Because section 3 of the 14^th amendment applies only to those who took an oath as “officers of the United States,” they argue, it does not apply to taking an oath as president because the president is not appointed pursuant to the Appointments Clause.

The Appointments Clause provides:

[The president] shall nominate, and with the Advice and Consent of the Senate, 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; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of the Departments.

U.S. const., art. II, § 2, cl. 2 (emphasis added).

On its face the italicized phrase “whose Appointments are not herein otherwise provided for” would seem to show that there is a category of “Officers of the United States” who are not appointed in accordance with the Appointments Clause because their appointments are “herein otherwise provided for.” Or at least that the Appointments Clause is not attempting to define the term “officer of the United States” in, as the Conkling committee put it, the “enlarged and general sense of the Constitution.” In other words, the clause either affirmatively demonstrates that there are “officers of the United States” who are not appointed in accordance with its provisions or indicates that nothing in the clause itself negates the possibility of such officers.

Tillman and Blackman do not accept this reading. If I understand them correctly (and I am not sure I do, despite having read their passages on this several times), they contend that the positions “not herein otherwise provided for” are those offices expressly mentioned earlier in the same sentence, namely ambassadors, other public ministers and consuls, and judges of the Supreme Court. See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachments, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 383-87,442-48 (2023). Put differently, they apparently believe that the framers felt the need– for an unknown reason—to explain what they meant by the word “other” in “all other Officers of the United States.” It is as if I said “I am inviting Fred, George, and some other people to my party, and by that I mean people who are not Fred and George but are in fact additional to Fred and George.” This might be a perfectly normal thing to do if you are writing a Monty Python skit, but it makes no sense as a matter of constitutional drafting.

Roger Parloff puts it somewhat more politely when he says that Tillman and Blackman adopt a reading of the words in question that is “exactly the opposite of what they appear to say.” And James Heilpern and Michael Worley are more polite still when they point out (pp. 27-31) that Tillman and Blackman offer no reason for rejecting the “most natural reading” of the Appointments Clause in favor of an unnaturally narrow construction of the phrase “whose Appointments are not herein otherwise provided for.”

To bolster their case, Tillman and Blackman point to the word “appointments” as evidence that the phrase in question cannot be referring to elected officials such as the president. That is why it is important to understand that the word “appointment” at the time of the framing was a general term that could embrace any process, including election, for filling an office. As Heilpern and Worley put it (p. 30), “[o]nce one understands this linguistic convention, we think the meaning of ‘whose Appointments are not herein otherwise provided for’ is clear and see no reason that it would not include the President.”

In their merits brief, the Colorado respondents argued that Trump’s interpretation of “officer of the United States” fails to account for the “not herein otherwise provided for” language of the Appointments Clause. According to Tillman, Trump failed to address this issue in his merits brief and therefore Tillman should be given oral argument time to offer his explanation of the language. This seems like an odd basis for a request for amicus oral argument, but I support it on the ground of its entertainment value alone. But I should also be given 5 minutes to provide rebuttal in the form of a Monty Python skit.

Tillman also says he should be given oral argument time to explain “his personal correspondence with the late Justice Scalia touching on the issues now before this Court.” I can see the confused look on your face so let me explain.

You may recall that a long ago there was controversy over then-President Obama’s recess appointments, which the Supreme Court declared to be illegal in a 2014 case fondly remembered by readers of this blog. Justice Scalia’s concurrence in that case begins “[e]xcept where the Constitution or a valid federal law provides otherwise, all ‘Officers of the United States’ must be appointed by the President ‘by and with the Advice and Consent of the Senate.’” NLRB v. Noel Canning, 573 U.S. 513, 569 (2014) (Scalia, J., concurring) (emphasis added). Scalia’s reference to a “valid federal law” refers to the portion of the Appointments Clause which permits Congress to vest the appointment of inferior officers in the president alone, in the courts or in the heads of departments. His reference to “the Constitution . . . provid[ing] otherwise” likewise obviously refers to the “not herein otherwise provided for” language of the Appointments Clause and suggests that he agrees with Heilpern and Worley on the “most natural reading” of those words.

Professor Tillman, however, was not happy that Justice Scalia read the language of the Appointments Clause to mean what it obviously says, rather than what Tillman thinks it says. Tillman therefore (I am not making this up) wrote to Scalia to ask him to explain further what he meant by this language. See Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachments, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 445 (2023). Scalia sent a note in reply to Tillman (I am still not making this up) as follows:

         I meant exactly what I wrote. The manner by which the President and Vice President hold their offices is “provide[d] otherwise” by the Constitution. As is the manner by which the Speaker of the House and the President Pro Tempore of the Senate hold theirs.

Id. at 446.

Now I would be cautious about putting too much weight on this note. A reasonable inference is that Scalia thought all the officials he mentioned are officers of the United States, but it is hard to say how much, if any, consideration he gave to that subject. It is fair to conclude, however, that Scalia rejected the centerpiece of the Tillman/Blackman theory of “officer of the United States” because he did not believe such officers were limited to those appointed in accordance with the Appointments Clause. But this is merely to say that Scalia reads that clause to mean what it says and what his Noel Canning concurrence says that it means.

I am not sure how the Supreme Court will benefit from Tillman’s further elaboration on this “personal correspondence.” But it would be entertaining.

Note: Seth Barrett Tillman points out that the second Bayard was actually the son, not the grandson, of the original Bayard. (Bayard’s grandson was also a senator, just not the one in question). The post is corrected accordingly.

Not surprisingly, there have been a lot of amicus briefs filed in the Supreme Court case of Trump v. Anderson, where the former president is seeking review of the Colorado Supreme Court ruling that excluded him from that state’s ballot. For those who do not speak lawyer, “amicus” is short for “amicus curiae” or “friend of the court.” As we know, though, there are different types of friends. Some friends are there for you during difficult times, like when the rain starts to pour and you need an umbrella or when you have to make a history-altering judicial decision and need some wise counsel. Other friends are the type that come to your house drunk at 2 in the morning and throw up on your new sofa.

Very much in the first camp is Professor Derek Muller of Notre Dame Law School, a leading election law expert. Professor Muller has filed an amicus brief that does not take sides or tell the Court who should win. Nor does it claim false certainty or sugar coat the difficulties of the matters before the Court. Instead, the brief provides an important perspective that the Court may not get from the parties, explaining the election law background and identifying some key issues the Court will need to address. Muller also explains why the Court should be precise if it decides to kick the issue to Congress, noting the differences between congressional authority to enact legislation pursuant to section 5 of the 14^th amendment, on the one hand, and possible congressional authority to refuse to count electoral votes for a disqualified candidate and/or to determine that a president elect has “failed to qualify” pursuant to the 20^th amendment, on the other.

In a future post we may want to explore the issues raised by Professor Muller in some detail. Today, however, we are going to talk about a different kind of amicus brief, one which, unfortunately, is probably more common. This type of brief is not designed to provide the Court with new information or a unique perspective on the issues before it. To the extent it is designed to influence the Court at all, it is only to inform it who supports what outcome. The primary purpose of such briefs, whether submitted on behalf of political figures or interest groups, often appears to be a kind of social signaling to the public or particular constituencies about whose side the amicus is on.  It seems very unlikely, for example, that the “Children’s Rights Legal Scholars and Advocates” or “The League for Sportsmen, Law Enforcement and Defense” have anything substantive to contribute to the issues before the Court in Trump v. Anderson.

Which brings us to the amicus brief filed by “Former Attorneys General Edwin Meese III, Michael B. Mukasey and William P. Barr; Law Professors Steven Calabresi and Gary Lawson; Citizens United and Citizens United Foundation” (hereinafter “Amicus Br.”). What this collection of amici have in common is something of a mystery. According to the interest of amici section, “Citizens United and Citizens United Foundation are dedicated to restoring government to the people through a commitment to limited government, federalism, individual liberty, and free enterprise.” Amicus Br. at 2. Exactly what that has to do with the case before the Court is left to the imagination. One can only assume that the interest of these organizations, like that of the children’s and gun rights groups, is of the social signaling variety.

The three former attorneys general, the brief explains, are interested in the case because during their tenures of office “the Department of Justice steadfastly defended the rule of law with respect to the Fourteenth Amendment.” Id. Uhh, ok. Do they file amicus briefs in the Supreme Court whenever a case involves a part of the Constitution they “steadfastly defended” in office? My guess is that they just want the Court to know that they support allowing Trump to stay on the ballot, even though Barr, who served as attorney general under both Trump and George H. W. Bush, has publicly said that Trump is unfit for the presidency.

Finally, we have Professors Calabresi and Lawson, who, the brief notes, “are former Department of Justice officials as well as scholars of the original public meaning of the Constitution.” Id. Their scholarly works have been cited by members of the Court, the brief points out. Interestingly, however, the brief itself doesn’t cite any of their scholarly works, including Calabresi’s prior articles that directly contradict positions taken in the brief. I guess the professors do not have an interest in explaining to the Court why the scholarship of original public meaning scholars is a poor guide to the original public meaning of the Constitution.

A few months ago when we reviewed the changing positions of Professor Calabresi regarding whether the president is an “officer of the United States,” I noted that Calabresi had presumably not changed his prior view that the president holds an “office under the United States” for purposes of both the original Constitution and section 3 of the 14^th amendment. Calabresi had previously defended vigorously the view that the presidency is an “office under the United States” and his September 16, 2023 blog post, in which he recanted his prior view that the president was not an “officer of the United States,” did not suggest that he had changed his view on the former issue. Furthermore, Calabresi reiterated in that blog post that Trump should have been impeached, convicted and disqualified for his conduct on January 6, 2021, thereby indicating that he still believed the presidency was an “office under the United States” within the meaning of the Disqualification Clause.

Calabresi’s blog post also indicated that the drafters of section 3 of the 14^th amendment intended to cover the president as an “officer of the United States,” but inadvertently used a “legal term of art” with a meaning different than the “colloquial meaning” on which the drafters relied.

Now, however, Calabresi has joined an amicus brief that disavows his former positions on both those issues. The amicus brief contends that the drafters of section 3 deliberately omitted the presidency, rather than simply inadvertently using the wrong language. It also asserts that the phrase “office under the United States” in section 3 does not include the presidency because that phrase “had long been a term of art” which excluded positions, such as the presidency, which “constitute” the government of the United States, but are not “under” it. Moreover, because the drafters of section 3 were familiar with this term of art, the brief maintains, that “there is little doubt” that the usage of this term in 1866 was understood not to include the presidency. Amicus Br. at 11. In endorsing this argument, Calabresi is not only repudiating everything that he said in his 2008 debate with Seth Barrett Tillman (in which, you may recall, he said that the argument he now endorses was an “utterly implausible proposition”), he is out-Tillmanning Tillman because Tillman himself does not argue that the phrase “office under the United States” excludes the presidency as it is used in section 3.

For those keeping score at home, Calabresi has now disavowed (1) his own 1995 law review article in which he said that the president was an officer of the United States; (2) his 2008 debate with Tillman where he reiterated this position and also argued at length that the presidency was clearly an office under the United States within the meaning of the original Constitution; (3) his August 10, 2023 blog post where he declared that Trump was ineligible for the presidency under section 3; and (4) the above mentioned elements of his September 16, 2023 blog post (which otherwise recanted his prior blog post).

So what is the originalist evidence that supports Calabresi’s remarkable evolution? Well, see it all starts with a speech given “during the impeachment trial of U.S. Senator William Blount in 1799 by Senator Bayard, one of Blount’s defenders.” See Amicus Br. at 10.

Wait, you say, “I didn’t know that there was a Senator Bayard who defended Blount during his impeachment trial.” Sure, that’s because you are just a rando who reads blog posts and not a famous legal scholar who gets cited by the Supreme Court. Well, also because there was in fact no Senator Bayard in the Blount impeachment trial. There was (as you know from reading my last post) a Representative Bayard, but he was a House manager who was prosecuting, not defending, Blount.

Pro tip: if you are going to file an amicus brief with the Supreme Court and purport to give it the benefit of your great legal expertise, try not to garble basic facts about the historical record. Otherwise you will end up looking as foolish as a guy who says the name of the wrong woman during his wedding vows.

Now in fact there was a Senator Bayard (actually, there were a number of them, but only one that matters here) who is relevant to the argument the amicus brief is making, but he was not involved in the Blount trial. Senator Bayard, the son of the Bayard who served as a House manager during the Blount impeachment, was the leading opponent of a controversial oath requirement that the Senate sought to impose on its members during the Civil War. And it is the debate over that oath requirement that the amicus brief seeks to use to show that the president was not understood to be an officer of, or hold an office under, the United States. (Maybe this has something to do with why the amicus brief thought there was a Senator Bayard in the Blount trial; it is hard to say.).

The oath at issue stemmed from a statute that Congress passed in 1862 which required that federal officeholders swear not only to prospectively support and defend the Constitution, but that retrospectively they had not borne arms against the United States or engaged in other seditious activities. The Senate subsequently began to insist that its own members take this oath before being seated. This might seem to be a relatively trivial matter, but it was thought to implicate deep questions of constitutional principle and to raise squarely the issue of whether and on what conditions the southern states would be allowed to rejoin the union. After all, if senators were required to take the retrospective oath, then no one previously involved with the Confederacy would be able to represent a state that rejoined the union. The oath requirement therefore addressed the same type of issue that would eventually be settled by section 3 of the 14^th amendment.

Senator Bayard opposed the retrospective oath requirement for a number of reasons, but one of them was that he contended that the statutory requirement did not apply to senators at all. The 1862 statute specified:

That hereafter every person elected or appointed to any office of honor or profit under the Government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe the following oath or affirmation . . . .

Cong. Globe, 38^th Cong., 1^st sess., appendix 32 (1864) (emphasis added).

Before explaining Senator Bayard’s reasoning, it should be noted that this statute itself provides some relevant information about how the Civil War Congress understood the phrase “office of honor or profit under the Government of the United States.” First, it indicates that such offices could be filled by either election or appointment. Second, it suggests that the presidency constitutes one such office since otherwise there would have been no need to exempt it. Third, it shows that Congress knew how to exclude the president from a legal requirement applying to “any office . . . under . . . the United States” when it wanted to. Each of these points tends to support the conclusion that section 3 applies to the presidency.

Senator Bayard, however, argued that United States senators (and representatives) did not hold offices covered by the statute for the simple reason that they did not hold offices at all. Id. at 36 (“[W]hat is the position of a Senator? My answer is, a station, a trust, not an office within the meaning of the Constitution.”). He contrasted these legislative positions with those of the president and vice president, who hold offices under the “plain and explicit” language of the Constitution. Id.

Senator Bayard buttressed his position by pointing to the Senate’s verdict in the Blount case, which he explained had found that a senator was not a civil officer of the United States and therefore in his view equally supported the conclusion that a senator (or representative) did not hold an office under the United States. Id. at 35. This resulted in retorts from his colleagues who pointed out that Bayard’s father had taken the opposite position in the Blount case.

Although this response would seem to be more like senatorial trash talking than a serious legal argument, another senator, like Bayard an opponent of the oath requirement, took it upon himself to show that the elder Bayard had been more consistent with his son’s views than the opposition allowed. That senator was Reverdy Johnson, whom we have previously discussed in connection with section 3. In the course of an address opposing the oath requirement, Senator Johnson quoted from Representative Bayard’s speech in the Blount trial. See Cong. Globe, 38^th Cong., 1^st sess. 329 (1864). You may recall the speech in question, in which Representative Bayard with evident embarrassment laid out the argument that a senator or representative might not hold an office under the United States even though he was an officer of the United States. The elder Bayard suggested in passing, as did Senator Johnson by quoting him, that the president likewise might not hold an office under the United States. It is Senator Johnson’s quoting of Representative Bayard’s speech that the amicus brief seizes upon (while omitting all of the background regarding the oath issue which we have just laid out) to show “there is little doubt that the phrase ‘officer *** under the United States’ was understood in 1866 not to include the office of President.” Amicus Br. at 11 (emphasis in original).

If this is the best argument you can come up with, it isn’t your day, week, month, or even your year. (O.k., I know I’m pushing it now). But seriously, Senator Johnson was one senator on the losing side of a debate about whether senators held offices under the United States. Even assuming Johnson thought his (losing) argument applied to the president as well, this view was not even shared by all the senators on his side, like Bayard, and it was obviously rejected by the senators in the overwhelming majority (the resolution to require the retrospective oath passed 28-11). And that is before we get to the fact that Senator Johnson himself later acknowledged that the president was covered by the language in section 3.

In short, the only reasonable inference from the oath debate is that it reinforces the conclusion that the president was understood to hold an office under the United States and, if the framers of section 3 had intended anything else, they would have exempted the presidency just as was done in connection with the 1862 oath statute. There is no plausible way that it can support the interpretation offered by these amici. They are not friends of the Court, at least not the kind that don’t throw up on your sofa.

In my last post I promised to explore the origins, such as they are, of the theory that the president is not an “officer of the United States” and/or does not hold an “office under the United States.” In the interim there has been a development, of sorts, in which Professors Tillman and Blackman have pointed to some newspaper articles in 1868 that argue the president is not an officer of the United States (albeit not in the context of section 3). I am name-checked in their piece, apparently because these articles supposedly falsify my prior statement that “’there is no record of anyone else, eminent thinker or otherwise, saying’ that the President does not hold an Office under the United States ‘in the Constitution’s first two centuries.’” However, at the end of this post I will explain why these 1868 articles do not help Tillman and Blackman at all. To the contrary, they are an excellent illustration of my point.

You may recall Benjamin Cassady’s claim that “[b]eginning at the Blount impeachment trial and continuing to present-day academic debates, some eminent thinkers have parsed the Constitution and its history for clues to support ingenious arguments that the two top executives are not officers as the Constitution uses that word.  . . .” A key issue in the 1799 impeachment trial of Senator Blount was whether a senator was a “civil officer of the United States” within the meaning of the Impeachment Clause, which provides that “[t]he President, Vice President and all civil Officers of the United States” are subject to impeachment.

The “eminent thinkers” identified by Cassady are Justice Joseph Story, Professor Brian Kalt, and Professor Tillman. One thing that these three have in common, apart from the eminence of their thinking, is that none were involved in the Blount trial. Story’s Commentaries on the Constitution, to which Cassady refers, was first published in 1833, more than three decades after Blount’s acquittal. But Story’s treatise contains speculation on what might have caused the Senate to decide Blount was not a “civil officer of the United States:”

The reasoning, by which it was sustained in the senate, does not appear, their deliberations having been private. But it was probably held that “civil officers of the United States” meant such, as derived their appointment from, and under the national government, and not those persons who, though members of the government, derived their appointment from the states, or the people of the states. In this view, the enumeration of the president and vice president, as impeachable officers, was indispensable; for they derive, or may derive, their office from a source paramount to the national government. And the clause of the constitution, now under consideration, does not even affect to consider them officers of the United States. It says, “the president, vice president, and all civil officers (not all other civil officers) shall be removed,” &c. The language of the clause, therefore, would rather lead to the conclusion, that they were enumerated, as contradistinguished from, rather than as included in the description of, civil officers of the United States.

2 Joseph Story, Commentaries on the Constitution: With a Preliminary Review of the Constitutional History of the Colonies and States Before the Adoption of the Constitution §791 at 259-60 (1833) (emphasis in original).

Note that Story is not addressing himself to, or expressing an opinion on, the question whether the president is a “civil officer of the United States” within the meaning of Article II or any other constitutional provision. Instead, he is sketching out an argument as to why the Senate might have concluded senators and representatives were not civil officers of the United States under the Impeachment Clause. To support that argument, he points to the fact that the president and vice president are expressly enumerated in that clause, which might have reflected the framers’ view that they would not otherwise be covered by the general “civil officers of the United States” language (or, alternatively, that there might have been an ambiguity about whether they were covered because they “may derive,” i.e., arguably could be said to derive, their office from a source paramount to the national government). If therefore the express listing of the president and vice president was considered necessary because they were not “civil officers of the United States” or, perhaps more precisely, they were not unambiguously “civil officers of the United States” as that expression is used in Article II, then it is less likely that the framers intended that senators and representatives be encompassed within the “catchall” category of “civil officers of the United States.”

It will be noted that the argument sketched out, though not necessarily endorsed, by Story is similar in form to that adopted by Judge Wallace in Anderson v. Griswold, except in reverse. Story was suggesting that the express inclusion of the president and vice president in the Impeachment Clause was evidence that senators and representatives were intentionally excluded, while Wallace found that the express inclusion of senators and representatives in section 3 showed that the president and vice president were intentionally excluded. However, the arguments are not of equivalent force because there is no argument that senators and representatives are officers of the United States, while the president and vice president are not, but there is a strong argument that the president and vice president are officers of the United States, while senators and representatives are not. To explain why it is helpful to look at the arguments in the Blount trial itself. Continue reading “Cool Story, Bro: The Historical Origins of the Office/Officer Controversy”

[I would have said “pseudo-intellectual” but I remembered what Art Buchwald said about offending them.]

Anyway, on a recent Lawfare Podcast (at 1:23:02) a listener asked this question about the Colorado district court’s ruling (now reversed on appeal) on section 3: “How is the Colorado judge’s ruling on Trump’s disqualification based on a plausible reading of the 14^th amendment and any existing precedents? What is the reasoning behind the interpretation?”

I will address this question as I interpret it, which I reformulate as follows:

Where does the idea that the president is not an “officer of the United States” and/or does not hold an “office under the United States” come from? Are there any historical or legal precedents for this idea or did Judge Wallace just conjure it out of thin air?

I begin by repeating a statement I made almost 7 years ago: “To my knowledge, prior to Professor Tillman’s raising the issue in 2009 or so, no one had ever expressly claimed or directly implied the president was excluded [from the Foreign Emoluments Clause]. No president, no member of Congress, no executive branch lawyer, no constitutional scholar. No one.” The same is true of the Incompatibility and Disqualification Clauses which, like the Foreign Emoluments Clause, apply only to “offices under the United States.”

In response, Professor Tillman cited me to examples in which President Washington received gifts that arguably would have violated the Foreign Emoluments Clause if it applied and suggested that this was the equivalent of Washington “implying” that the clause was inapplicable. (See Tillman’s comment of Mar. 17, 2017). However, there are many reasons why Washington might have thought, correctly or incorrectly, that the clause was inapplicable and other possibilities as well (he might not have thought about it at all or he might have decided that for some reason he could not comply with the letter of the clause). Regardless, this is hardly the equivalent of a public assertion that the clause was inapplicable because the president does not hold an “office under the United States.”

As I will discuss in my next post, there is slightly more of a historical pedigree to the argument that the president and vice president are not “officers of the United States” within the technical usage of Article II, an argument that also has a basis in the actual text of that article. But that argument has only minor implications for the presidency and vice presidency (it is more consequential with regard to members of Congress). Until Professor Tilllman first started writing about this issue (around 2008 or so), no one had seriously attempted to suggest that the president and vice president were not “officers of the United States” for general purposes, much less that they were exempt from constitutional provisions applying to “offices under the United States.”

There was, however, one mention of this “issue” (if that is the right word) prior to 2008. Specifically, it appears in an article entitled “Is the Presidential Succession Law Constitutional?,” 48 Stan. L. Rev. 113 (1995-96) by Akhil Reed Amar and Vikram David Amar. (For those who do not know, the Amar brothers are highly regarded legal academics and Professor Akhil Amar, in particular, is one of the most influential constitutional scholars of his time.) The thrust of the article is that it is unconstitutional to put congressional officers, such as the speaker of the House and the president pro tem of the Senate, in the line of presidential succession. One of the points the Amars make is that if a congressional officer were to become acting president, resignation from Congress would be required to avoid “a patent violation of the Incompatibility Clause rule that no sitting Senator or Representative may hold executive or judicial office.” Id. at 118-19. In a footnote, they make the following observation:

A quibbler might try to argue that the President does not, strictly speaking, “hold[ ] . . . Office under the United States,” and is instead a sui generis figure. But Article II provides that the President shall “hold his Office” for a four-year term, . . . prescribes an oath for “the Office of the President of the United States,” . . . and further provides that the President shall be removed from Office on Impeachment . . . and Conviction.” More importantly, the anti-Walpolian spirit underlying the Incompatibility Clause would have barred, for example, President George Washington from simultaneously serving as a Virginia Senator.

Id. at 119 n.34 (citations omitted) (emphasis in original).

Continue reading “Amarica’s Constitutional Crisis: A Kinda Intellectual History of the Office/Officer Controversy”

Another preliminary matter regarding Judge Wallace’s opinion holding that former President Donald Trump was not disqualified under section 3 of the 14^th amendment. In finding that the presidency is neither a disqualification-triggering nor a banned office within the meaning of that provision, the judge explained that “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.” Order at 101, ¶ 314. Here, the court is essentially applying a “democracy canon” along the lines suggested by Professors Tillman and Blackman (although it does not cite them). See Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 105 & n. 306 (forthcoming 2024) (citing Richard L. Hasen, The Democracy Canon, 62 Stan. L. Rev. 69 (2009)).

Now the “democracy canon” is not one of the more well-established canons of construction, and I really have no idea whether it would apply here or if it exists at all. For purposes of discussion, however, I am happy to assume that there is a “democracy canon” that calls for ambiguous constitutional and statutory provisions to be construed, if possible, in favor of voter enfranchisement and empowerment. And if that is the case, and if the phrase “any office, civil or military, under the United States” in section 3 was ambiguous with respect to the presidency (it isn’t, but we will get to that in a future post), then the democracy canon could reasonably be applied to argue for a narrow construction of the phrase. In other words, if it was unclear whether the presidency was a banned office under section 3, the democracy canon would argue in favor of excluding the presidency so as not to deprive voters (well, presidential electors, really) of their ability to select the candidate of their choice for that position. Perhaps (the argument would go) the framers of the 14^th amendment thought that the right of voters to select a president of their choice was so important that they should be able to vote for an insurrectionist if that is what they wanted.

Applying this canon to the question of disqualification-triggering offices, however, makes absolutely no sense. The effect here would be to preserve the ability of voters to select an insurrectionist for the presidency or any other office so long as the only oath he had violated was that of president (or vice president). But if this candidate had taken any other oath as a federal or state legislator or officeholder, he would still be disqualified. This would be an entirely arbitrary distinction that would apply to only one person in history, Donald J. Trump. The “democracy canon,” if it exists, does not support this result.