Yes, the Fourteenth Amendment Covers the Presidency

Yes, the Fourteenth Amendment Covers the Presidency

The Supreme Court should not twist the Constitution, argues Saikrishna Prakash

The Supreme Court has agreed to hear Trump v. Anderson and review the Colorado Supreme Court’s decision to disqualify former President Donald Trump from the Colorado primary ballot. The former president’s lawyers have argued consistently that Section 3 of the Fourteenth Amendment does not apply to the presidency because the president is not an officer of the United States and because he did not take an oath to support the Constitution. But these arguments fly in the face of common sense, as well as the section’s text and purpose.

Section 3 is a mouthful. It provides that “No person shall be a Senator or Representative in Congress, … or hold any office, civil or military, under the United States … who, having previously taken an oath as a member of Congress or as an officer of the United States …, to support the Constitution … shall have engaged in insurrection or rebellion against the same … .”

Trump’s lawyers all but admit that a rebellious lieutenant is covered by this text and hence cannot hold any office of the United States. But they argue that a rebellious president is outside the scope of Section 3. Yet why would a provision disqualify all rebellious officers, including district attorneys, judges, port collectors, and captains, but provide a safe harbor for a rebellious  president? This claim defies explanation. The people who drafted this provision sought to disqualify from future office all officers who broke their oath to the Constitution by engaging in rebellion or insurrection, including presidents.

The text yields the same conclusion. Did Donald Trump take an oath to support the Constitution? On Jan. 20, 2017, he took an oath to “preserve, protect, and defend the Constitution.” That vow not only required him to support the Constitution, it obliged him to resist violations of it. Because a president must do more than those who merely vow to “support the Constitution” is no sound argument that he may do less. The greater duty encompasses the lesser obligation. If it did not, we would have to imagine that a president could somehow “defend the Constitution” while simultaneously failing to support it. That square cannot be circled.

Was President Trump an “officer of the United States”? Article II says the president “shall hold his office” for four years. It further provides that the president must swear to “faithfully execute the office of president … .” Because the president occupies an office, he is an officer. Dictionaries published at the time of the ratification of the amendment described the president as the “chief executive officer of the United States.” Likewise, before the adoption of the Fourteenth Amendment, President Andrew Johnson repeatedly described himself as the “chief civil executive officer of the United States.” Could dictionaries and the sitting president at the time of the amendment’s enactment be wrong?

The only contemporaneous discussion signals that federal officers who were rebels or insurrectionists cannot assume the presidency, at least absent congressional action. When one senator asked why the presidency was left open to rebels, another remarked, “Let me call the senator’s attention to the words ‘or hold any office, civil or military, under the United States.’” The first senator then responded, “No doubt I am [wrong].”

Against this straightforward reading is the claim that Section 3 is vague because it never directly mentions the presidency. But the president is covered just as much as a Supreme Court justice is, even though neither is specifically mentioned. Many constitutional constraints apply to the presidency even though they do not mention the office.

Behold the parade of horribles if the presidency must be specifically listed for a constitutional rule to apply to it. Can Congress impose a religious test for presidents? The general prohibition on religious tests never mentions the presidency. Can Congress bar impeached and convicted officials from the presidency? The rule that the presidency must be expressly mentioned would signal that a sitting president could be impeached, convicted, removed and barred from every other federal office, but go on to serve as president again. Finally, presidents could receive billions of dollars from foreign kings and dictators because the constitutional bar on gifts from foreign governments does not specifically mention the presidency.

Perhaps the Supreme Court can avoid deciding whether President Trump was an insurrectionist. Whatever the case, it should avoid twisting the Constitution to conclude that the presidency is outside the scope of Section 3. The claim that the presidency is beyond the reach of Section 3 is beyond the pale.