A Response to a Journalist’s Question

 

 

Dear Journalist,

You asked: “Another question comes to mind, and apologies if you’ve already answered it in writings I missed: If the president is not an officer under the U.S. for the purposes of the 14th amendment, wouldn’t that mean that he cannot be disqualified from future office even by impeachment and conviction? Article II refers to disqualification from ‘any office of honor, trust or profit under the United States.’ So a Supreme Court of the United States ruling that President is not an officer for 14th amendment purposes would also mean an impeached and convicted President cannot be disqualified from seeking another term?”

This is not a single question. It is multiple questions. 

I have not taken any position on the meaning of Section 3’s “office ... under the U.S.”-language. I have repeatedly written on the meaning of “Office ... under the U.S.” as it appears in several clauses of the (original) Constitution of 1788. In 1788, that language did NOT, in my opinion, extend to any elected federal positions. Furthermore, I have been on the record since 2011, that that meaning may or may not have been the original public meaning in 1868. Why? There may have been linguistic drift between 1788 and 1868. My brief (with Josh Blackman) has not taken any position on the 1868 meaning of the phrase. We have not asked the Court to reach that issue. If the Court does reach this issue, and does adopt a limited construction of that phrase as used in Section 3, then that determination may or may not extend to the same language as used in provisions of the Constitution of 1788. We will have to wait and see what the Supreme Court decides and how it rationalizes its decision. 

As for the Impeachment Disqualification Clause in the Constitution of 1788 ... there was a special issue on the scope of that clause in Quinnipiac Law Review in 2014. I contributed to that symposium here: Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2484377>. I maintained, then and now, that a defendant impeached by the House, and tried, convicted, and disqualified by the Senate cannot serve in appointed federal positions in all 3 branches of the federal government, but such a party may be elected to either house, to the vice presidency, to the presidency, and elected or appointed to any state position. 

As to “office ... under the U.S.” in Section 3, Professor Lash has taken the position, as I understand it, that the weight of evidence does not support any inference that that language extends to the presidency (as used in Section 3). That is his position, not mine. I am still studying this issue—as I have been since 2011. 

My amicus brief (with Josh Blackman) takes the position that in 1788, 1868, and now—that “officer of the United States” only extends to appointed positions in the Executive Branch and in the Judicial Branch of the federal government. I do not see any good evidence of linguistic draft between 1788 and 1868. See, e.g., United States v. Germaine, 99 U.S. 508 (1878); United States v. Mouat, 124 U.S. 303 (1888).

Finally, in United States v. Smith, 124 U.S. 525, 532 (1888) (Field, J.), the Court held: 

An officer of the United States can only be appointed by the president, by and with the advice and consent of the senate, or by a court of law, or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the constitution. This subject was considered and determined in U.S. v. Germaine, 99 U.S. 508 [(1878)], and in the recent case of U.S. v. Mouat, 124 U.S. --, ante, 505 [(1888)]. What we have here said is but a repetition of what was there authoritatively declared.

 

Id. at 532 (bold added).

In Smith, the Supreme Court’s use of “authoritatively declared” is quite exceptional. And, because the language of “officer of the United States” is used in the Constitution as a defined term, much (if not most) of the evidence collected by Heilpern and Worley, Professor Graber, and others, which only reflects popular usage, is (in my view) substantially irrelevant to the issue at hand.

I hope that answers your questions.

Seth

Seth Barrett Tillman, ‘A Response to a Journalist’s Question,’ New Reform Club (Jan. 18, 2024, 5:17 AM), <https://reformclub.blogspot.com/2024/01/a-response-to-journalists-question.html>;