Seth Barrett Tillman and I have published an article in the New York Journal of Law & Liberty, titled Are the Fourteenth Amendment’s Section 3 requirements applicable to the President? We answer a crucial question. Can President Trump be removed from office for a second term? This article is based on our January 20, 2020 blog post.
The abstract is here:
After the Civil War ended, section 3 of The Fourteenth Amendment became law in 1868. Certain people “engaged with insurrection” are prohibited from serving as federal or state officials under this provision. The meaning of Section 3 was for a while a subject of considerable debate. Later, in the twenty-first century, Section 3 fell into disuse.
Section 3 holds a central place in the constitutional debate. The House of Representative approved on January 13th 2021 an article of impeachment that included Section 3 against Donald Trump. There is still legislation that would put Section 3 in effect. The bill’s supporters claim that Trump could be rendered ineligible for a second term. To keep Trump off the electoral ballot, state election officials might also use Section 3. However, all of these legal options fail to address a crucial question: Did Trump get covered under Section 3?
It is not easy to understand the structure of Section 3 under the Fourteenth Amendment. For our purposes, however, we are focusing on a narrow question: Was Trump “an officer” when he took the Article II Presidential oath? He is potentially disqualified from serving another term if he answers “yes” to Section 3. He is exempt from Section 3 and can’t be disqualified for serving another term under Section 3. We believe there are substantial reasons to suspect that the President isn’t an “officer” of the United States. Accordingly, President Trump’s one-time constitutional oath does not fit within Section 3. He cannot therefore be excluded under this section.
This article is divided into six sections. Part 1 will argue that “officer” and “office” are synonymous with the United States. . . Under the United States” refers to various categories of positions. Part II examines the use of “officer of United States”, which appears in Section 3 of Section 3 of Fourteenth Amendment. This amendment was ratified on 1868. Part III will explain that the meanings of “officer of America” didn’t change from 1788 up to 1868. Both eras provide substantial evidence that President wasn’t considered “officer” of the United States. Part IV will cover longstanding Executive Branch opinions which stated that elected officials, such as Presidents, are not officers of the United States. Part V will discuss recent academic arguments indicating that President Trump is an “officer in the United States”. The final part of Part VI describes how Congress will most likely decide whether Trump is subject or not to Section 3 under the Fourteenth Amendment.
We hope that our scholarship will be useful in legal debates or election challenges if Trump is elected to a second term.