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 14thamendment 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 14th 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 14th 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”).

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