I have not been deep in the weeds of the arguments about Section 3 of the Fourteenth Amendment, unlike my constitutional law casebook coauthors: Mike Paulsen, Michael McConnell, and Will Baude. But it is surprising to me that the former President of the United States seems to be putting most of his legal eggs in one basket—the argument that the President is not an “officer of the United States.” This is the lead argument in the brief available here. And for reasons I cannot understand—as a matter of legal principle—this argument is now being advanced by various conservative legal luminaries.
Three observations:
1. The textual arguments advanced in the brief are weak, but the fundamental problem is a lack of sophistication about the interplay between semantics and context. Here is an example from pages 23-24: “every time this phrase appears in the Appointments Clause, the Commissions Clause, and the Impeachment Clause it excludes the President and refers only to appointed and commissioned officers rather than elected officials.”
But it is not “this phrase” that excludes. In the Appointments Clause and the Commissions Clause, it is the context that makes clear that the President is not in view, because the President is not appointing or commissioning himself. It is not the semantic content of “officer of the United States.”
By analogy, if I were to host a dinner for all of my colleagues at Notre Dame Law School, and I said “all law faculty are welcome, but none are obligated to be there,” would I be saying that I, as the host, was not obligated to be there? Of course I would be obligated. Would I therefore be saying that I was not “law faculty”? No. My usage would not be advancing a narrow view of the semantic domain of “law faculty”; I would instead be using the phrase in a context that indicated that I was obviously excluded.
And in the Impeachment Clause it is not even the case that the phrase excludes the President, since it merely has an overlap with a very good reason for the additional specification. It is so important to make clear that the President and Vice President may be impeached—no small point against the background of royal prerogative power in England—that they are spelled out specifically. That does not mean they are not officers, and the brief’s suggestion that “all other civil officers” would have to be used does not fit the legal drafting culture of the late eighteenth and nineteenth centuries. To give another example from that legal drafting culture, “necessary and proper” and “necessary or proper” and “necessary and appropriate” and so on all meant exactly the same thing (the sort of thing I explored here). This general point also weighs against any attempt to cut hyper-fine distinctions between an “officer of the United States” and an “office under the United States.”
2. So is Section 3 such a context where the President is excluded? And here the argument in the former President’s brief runs straight into the buzz-saw of what we could call the Andrew Johnson Problem. It is hard to imagine that the Reconstruction Congress that proposed Section 3 of the Fourteenth Amendment, and the state legislatures that ratified it—in the middle of an intense struggle with President Andrew Johnson, and focused on all the problems that could come from a President who was not on board with reconstruction—would say that the two people who should be allowed to be Confederates would be the President and Vice President. We can retrofit plausible explanations for why the President and Vice President might be different (e.g., the Lessig argument here). But the Reconstruction Congress was in the middle of fighting tooth and nail with Andrew Johnson. That Congress thought President Johnson was imperiling all that the Union soldiers fought for. Was that Congress creating an exception for President Johnson? The burden of proof for showing that they were in fact doing that is so massive that it could not be met except with the clearest possible evidence.
3. The argument on page 23 of the brief that a presidential oath to “preserve, protect, and defend the Constitution” is not an oath to “support” the Constitution is risible. Try explaining it to a child. It is an argument that should be treated with derisive scorn by everyone who encounters it. It is the kind of magic-words literalism that is the reason people think they hate lawyers. Justice Scalia once said that if he accepted a certain argument “I would hide my head in a bag.” That is a fitting response to the argument that the presidential oath does not require the President to support the Constitution.
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