Amarica’s Constitutional Crisis: A Kinda Intellectual History 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 14th 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).

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