Let me begin by saying that I do not know Professor Calabresi and have nothing against him as a person or a legal scholar. Moreover, the title of this blog post is not meant to suggest that his legal conclusion in the matter we are about to discuss is obviously wrong. I think it is probably wrong, but I do not think it is frivolous or entirely implausible. What I find confused, and frankly a bit unsettling, is the reasoning process that has led Calabresi to this conclusion.
Starting our story at the end, as it were, on September 16, 2023, Professor Calabresi wrote a blog post concluding that because Donald Trump was not and had not been “an officer of the United States” within the meaning of section 3 of the 14th amendment, he cannot be disqualified from future office under that provision. Calabresi favorably notes a recent article by Professors Seth Barrett Tillman and Josh Blackman which addresses this point, although he does not indicate whether his own view on this particular issue was influenced by their work.
As Calabresi acknowledges, slightly more than a month earlier, on August 10, he had written a blog post flatly stating that Trump falls within section 3’s ban on officeholding and therefore “is disqualified from being on any primary or general election ballots next year.” Calabresi says that he has changed his mind because of the “officer of the United States” issue, and he also suggests that he is less certain about whether the events of January 6 constitute an “insurrection” at all (I also have some doubts on the latter point, but that is not the subject of today’s post).
As you may recall from my last post, section 3 presents two issues with respect to the presidency in particular: (1) whether the president is an “officer of the United States” and therefore holds a disqualification-triggering office; and (2) whether the presidency is an “office under the United States” and therefore is an office which a disqualified official is banned from holding. Although Calabresi did not directly address either of these issues in his August 10 post, he implicitly answered both questions in the affirmative. Now, however, he has changed his mind, but only (it appears) as to the first issue. Presumably Calabresi still believes that the presidency is an “office under the United States” for purposes of section 3 (and, as we shall see, for purposes of other constitutional provisions).
Calabresi acknowledges in his September 16 post that he once believed the president is an officer of the United States. He refers to a 1995 article in which he said the “best reading” is that the president and vice president are “officers of the United States” as that term is used in the Appointments and Commissions Clauses of Article II. Steven G. Calabresi, The Political Question of Presidential Succession, 48 Stanford L. Rev. 155, 159 n.24 (1995). One problem with this reading is that the Commissions Clause provides the president “shall Commission all the Officers of the United States” and in historical practice neither the president nor vice president have received commissions, but Calabresi explained that this could “be deemed an oversight.” Id.
According to Calabresi, his decades of academic work on the presidency have convinced him that this opinion of his “foolish youth” (as he puts it) was wrong and that “the words ‘officer of the United States’ are a legal term of art, which does not apply to the President.” Calabresi does not say when he reached this conclusion, but it is worth noting (as he does not) that he still held his original opinion at least as of 2008. 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 (2008).
In The Great Divorce (don’t ask me why it is called that) Tillman and Calabresi debate whether the Incompatibility Clause applies to the president. As readers of this blog are well aware, the Incompatibility Clause provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” According to Tillman, the presidency is not an “office under the United States” and therefore there is no constitutional prohibition against a person serving as president and a member of Congress at the same time. In the debate with Calabresi much of Tillman’s argument was premised on the proposition that the president is not an officer of the United States within the meaning of Article II because the usage of the term in Article II shows it applies only to appointed, not elected, officials. See The Great Divorce, 157 U. Pa. L. Rev. PENNumbra at 137-38 (discussing the Impeachment and Commissions Clauses). If this is so and the terms “officer of the United States” and “office under the United States” should be read coextensively, Tilllman argues, it follows that the Incompatibility Clause does not prohibit joint congressional-presidential officeholding. Id.
Calabresi’s response to this argument may best be described as bemused incredulity. See id. at 141 (“Seth Barrett Tillman has made an ingenious argument for an utterly implausible proposition.”). Calabresi responds to Tillman with the following points: (1) the presidency is clearly an office, as the Constitution explicitly states on multiple occasions, and every indicia of original public meaning supports the conclusion that it is an “office under the United States” and that the president is an “officer of the United States;” (2) the terms “office under the United States” and “officer of the United States” are not legal terms of art with a specialized meaning different from their ordinary meaning; (3) the usage of “office” and “officer” in legal discourse prior to the adoption of the Constitution was inconsistent with Tillman’s theory because, for example, state governors, whether or not elected, held offices under the state and were officers of the state; (4) Tillman’s theory would lead to normatively implausible results under the Incompatibility Clause (i.e., allowing a sitting president to serve in Congress) as well as other clauses such as the Foreign Emoluments Clause; and (5) Tillman’s theory is inconsistent with uniform historical practice, as exemplified by the fact that no one “in 219 years held the presidency while serving as a member of Congress, and the two sitting senators elected to the presidency, Warren G. Harding and John F. Kennedy, both resigned their senate seats upon becoming President.” Id. at 142-44. (Note: not long afterward Barack Obama and Joe Biden also resigned their senate seats after being elected to the presidency and vice presidency).
With respect to Tillman’s argument specifically regarding Article II’s use of the term “officer of the United States,” Calabresi acknowledged this was a closer question. See id. at 144-45 (noting that the Commissions Clause provides “Tillman’s best argument); id. at 157 (conceding again that Tillman has a “valid point” about the Commissions Clause). Nonetheless, he adhered to the position he had taken in 1995 that the better reading of Article II is that the president and vice president are officers of the United States. In support of that position, Calabresi particularly stresses the language of the Necessary and Proper Clause of Article I, which applies to powers vested “in the Government of the United States, or in any . . . Officer thereof.” Because the president has always been considered an “Officer” within the meaning of this provision, and because it was “highly implausible” that this language would have been interpreted differently than the nearly identical language of Article II, Calabresi argued that the president must be an “officer of the United States” for all purposes. Id. at 142; see also id. at 156 (“Tillman’s inability to differentiate the Necessary and Proper Clause is thus fatal to his thesis.”).
Finally, Calabresi notes that even if the president was not an “officer of the United States” for purposes of Article II, it would not necessarily follow that he does not hold an “office under the United States” for purposes of the Incompatibility Clause and other constitutional provisions because the latter phrase is arguably broader. Id.at 156-57.
At this point it is worth considering what Calabresi has and has not changed his mind about since 2008. It seems clear that he has not changed his view that the president holds an “office under the United States” as that term is used in various constitutional provisions, including section 3 of the 14th amendment. For example, Calabresi notes that he favored the impeachment and disqualification of Trump for the events of January 6. Presumably therefore he believes, contra Professors Tillman and Blackman, that such disqualification would prevent Trump from again ascending to the presidency because it is an “office under the United States” within the meaning of the Impeachment Clause.
Calabresi also still believes (I think) that there was no legal term of art prior to the adoption of the Constitution that excluded elected state officials in the executive branch from being officers of the state (or holding offices under the state). For example, an elected state governor would be an officer of that state within the meaning of the state’s constitution. Moreover, I assume that Calabresi still believes that elected governors and other elected state officials in the executive and judicial branches would qualify as “executive and judicial Officers . . . of the several States” within the meaning of the Oaths Clause in Article VI of the Constitution.
Calabresi has changed his mind on whether the term “officer of the United States” in Article II is best read to apply to the president and vice president. This is perfectly reasonable in my estimation. As Calabresi acknowledged in his prior writings, this is a close question and reasonable arguments can be made on either side. I have previously expressed the view that the president and vice president probably should not be considered “officers of the United States” as that term is used in Article II and so I can hardly criticize Calabresi for coming around to the same position. (Exactly why he changed his mind on this, seeing as the arguments today are no different than they were in 1995 and 2008, though, is a little puzzling).
This situation is different, however, regarding the interpretation of “officer of the United States” outside of Article II. In 2008 Calabresi said that “when the Oath Clause of Article VI requires that all federal and state executive and judicial officers takes oaths to uphold the Constitution the Clause is clearly referring to the President, the Vice President and to state governors as well as to all federal and state judges.” The Great Divorce, 157 U. Pa. L. Rev. PENNumbra at 142-43 (emphasis added). Thus, Calabresi believed the president and vice president were “executive . . . Officers . . . of the United States” within the meaning of Article VI. Presumably he must have changed his mind on this because otherwise it would make no sense for him to claim that “officer of the United States” is a term of art that excludes the president and vice president for all constitutional purposes, but his September 16 post does not mention the Oath Clause or offer any explanation for why he no longer has the opinion he expressed so emphatically in 2008.
On the other hand, I find it difficult to believe that Calabresi has changed his mind about the Necessary and Proper Clause of Article I, when he claimed in 2008 that “[e]veryone for 219 years has thought that the Necessary and Proper Clause uses these words [Officer of the Government of the United States] to refer to the President.” Id. at 142. Furthermore, he stressed that “Congress has enacted lots of legislation over two centuries predicated on the idea that it can carry into execution the President’s executive power because he is an ‘officer’ of the ‘Government of the United States.’” Id. at 156. Surely if Calabresi had changed his mind on such an important issue, he would have at least mentioned it in his blog post.
But if Calabresi has not changed his mind regarding the Necessary and Proper Clause (and the Oath Clause), it is hard to see how he could maintain that “officer of the United States” is a term of art that must be read to exclude the president (and vice president) for all purposes in the original Constitution, much less in an amendment that was enacted many decades later. Calabresi claims that the phrase “officer of the United States” must “presumptively” mean the same thing in section 3 as it does in Article II, but this cannot be right if it means something different in Articles I and VI.
Moreover, apart from the internal consistency of Calabresi’s views on these issues, I have questions regarding the interpretive methodology that leads him to declare so confidently that the Constitution establishes “officer of the United States” as a legal term of art that excludes the president and vice president for purposes of section 3, when Calabresi himself admits that the drafters of section 3 themselves did not understand this to be the meaning of the term. Calabresi concedes that “[t]he Senate in debating Section 3 of the 14th Amendment was of the view that the president is an officer of the United States.” If the Senate did not understand this “term of art,” is Calabresi claiming that the House, the legislatures that ratified the 14th amendment or the public at large did so? I don’t think he is making this claim, and if so he certainly has not produced evidence to substantiate it.
A far more conventional analysis, it seems to me, would be to say that while the ordinary meaning of “officer of the United States” would seem include the president and vice president, Article II’s usage of that term makes it ambiguous as applied to these officeholders. One would then ask what reasons support a narrower or broader construction of the term as used in section 3. For example, would excluding the president and vice president from the list of officeholders who are disqualified from public office if they engage in insurrection or rebellion be a normatively plausible result? Would someone reading the text of section 3 when the 14thamendment was proposed by Congress have understood this exclusion given that the list of disqualification-triggering offices covered all other significant (and many insignificant) federal and state offices? The answers to these questions seem self-evident. If there are countervailing considerations that would support a narrower construction, I have not heard them.
Finally, it seems to me that all law professors or other self-appointed constitutional experts would be well-served by a dose of humility in commenting on section 3, given that there are obviously a host of novel and unsettled issues arising from its potential application to the events of January 6. Declaring confidently on one day that section 3 clearly disqualifies Trump from office and with equal confidence a few weeks later that it does not apply to Trump is a textbook example of what not to do.