James Heilpern (Senior Fellow, Brigham Young University – J. Reuben Clark Law School) & Michael T. Worley (Attorney, Provo, UT) have posted Evidence that the President is an "Officer of the United States" for Purposes of Section 3 of the Fourteenth Amendment (78 pages) on SSRN. Here is the abstract:
In 1868, three years after the conclusion of the Civil War and the assassination of Abraham Lincoln, the 14th Amendment was ratified and became part of the United States Constitution. The Amendment officially overturned the notorious Dred Scott decision and was designed to grant citizenship and ensure equal protection under the law for recently freed slaves. But Section 3 of the Amendment also contained a provision that limited the ability of a small class of a former Confederates—those that had previously taken oaths to support the U.S. Constitution—from holding public office in the future:
"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."
Six months ago, William Baude and Michael Stokes Paulsen made headlines by publishing an article on SSRN, The Sweep and Force of Section Three, in which they argued that Donald Trump’s actions on January 6, 2021 qualified as an insurrection and that Section 3 therefore disqualified him from being elected President again. At the time, Trump was (and remains) the front runner for the Republican nomination for President in 2024. Baude and Paulsen’s paper inspired lawsuits in 21 states, seeking to remove President Trump from the upcoming primary ballots.
Most of the media attention has focused on whether Trump actually “engaged in insurrection.” This paper focuses on a far less titillating question. In order for Section 3 to apply to Donald Trump, he must have been an “officer of the United States” prior to committing the alleged insurrection. Baude and Paulsen argue that, as President of the United States, Trump was an officer of the United States. In making that argument, Baude and Paulsen disagreed with an earlier piece by Josh Blackman and Seth Tillman, Is President an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment? Blackman and Tillman examined the original 1789 constitution and concluded that the founding generation understood that the President was not an “officer of the United States.” Their analysis focused on the text of the constitution and subsequent sources. Based on this conclusion, Blackman and Tillman “contend that the phrase ‘officer of the United States’ has the same meaning in Section 3 as it does in the Constitution of 1788.” This implies that “the elected President is not an ‘officer of the United States.’”
The answer to this dispute has undeniable urgency: On December 19, 2023, the Colorado Supreme Court concluded that Donald Trump is ineligible to be on the Colorado Republican primary ballot for President because he is disqualified under Section 3. The opinion reversed a trial court judge who had found Trump did commit insurrection but that Section 3 did not apply because Presidents are not officers of the United States. Rejecting Trump’s contention that “officer of the United States” was a term of art, the state supreme court concluded that “[i]f members of the Thirty-Ninth Congress and their contemporaries all used the term ‘officer’ according to its ordinary meaning to refer to the President, we presume this is the same meaning the drafters intended it to have in Section Three.” The court cited examples of the contemporaries of the Fourteenth Amendment referring to the President as an officer, but only cited limited evidence about the use of the full term “officer of the United States.” Baude and Paulsen similarly cite limited historical evidence, spending under ten pages on this issue, which they spend discussing logical reasoning more than historical evidence.
This article attempts to fill the gap in historical evidence and provide a more detailed theoretical foundation. Part I reviews Blackman and Tillman’s article and the use of its arguments in the Colorado litigation. In Part II, we respond to these arguments as a textual matter, ultimately concluding that “officer of the United States” was not a term of art at the time of the Founding. In Part III and IV, we then turn to the meaning of the phrase at the time of the ratification of the Fourteenth Amendment. In Part III, we discuss and confirm that historical records including the text, legislative history and ratification debates of the Fourteenth Amendment, the legislative history of the Fifteenth Amendment, and popular sources such as contemporary newspapers demonstrate that elected officials can be “officers of the United States.” Part IV then discusses specific evidence that the President is not just an officer, but is an “officer of the United States” as contemporaries of the 14th Amendment would have understood that term, relying on numerous texts, including legislative history, newspapers, and proclamations from President Andrew Johnson himself. Part V reexamines case law that Blackman and Tillman rely on. We then conclude.
The intention of this article is to marshal some evidence that shows that at the time of the ratification of the 14th Amendment, the President was regularly thought to be and talked about as an officer of the United States. Blackman and Tillman acknowledge that it is “conceivable” that the meaning of the phrase officers of the United States experienced “linguistic drift” between 1788 and 1868: "But until proponents of the view that Section 3’s “officer of the United States”- language includes the presidency put forward evidence as probative as Mouat and Hartwell, we will maintain that the original public meaning did not shift between 1788 and 1868. The President is not an “officer of the United States” for purposes of Section 3’s jurisdictional element."
Our goal is to respond to both this invitation and correct assumptions that underlie it.
Our conclusion is simple: the President was an officer of the United States as originally understood both at the Founding and the ratification of the Fourteenth Amendment. Numerous sources confirm that “officer of the United States” was not a term of art, which by itself settles the matter. Regardless, founding-era sources also refer to the President as an officer of the United States. This includes the Postal Act of 1792, which lists the President with officers of the United States. Additionally, there is strong probative evidence that, in 1868, President was considered an officer of the United States.
At Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman have this (pretty harsh) response: A New, Rushed, Flawed Article In The Section 3 Debate. It begins:
Recently, James Heilpern and Michael T. Worley (the "Authors") posted an article to SSRN titled Evidence that the President is an "Officer of the United States" for Purposes of Section 3 of the Fourteenth Amendment. The Authors conclude that our position is incorrect. Their Article cites an "undeniable urgency" to answer this question. As often happens in anticipation of, and during fast-paced litigation, people who have no prior expertise in an area profess an immediate expertise, and make bold conclusions with the intent of influencing that litigation. This may be one such paper. For reasons we discuss below, Justices and judges, lawyers, scholars, and the press should exercise caution before citing this paper.
UPDATE: At Point of Order, Michael Stern has an interesting (and long) post on the history of the officer issue, in which Professor Tillman features prominently: Amarica’s Constitutional Crisis: A Kinda Intellectual History of the Office/Officer Controversy. (Thanks to Andrew Hyman for the pointer.)
FURTHER UPDATE: Heilpren & Worley have posted an update in response to comments. The abstract explains:
UPDATE (1/8/24): We appreciate the encouraging comments and suggestions we have received from peers in the scholarly community. We have uploaded a revised draft that incorporates some of these suggestions, as well as adding additional evidence that we have found since posting our original draft. These include:
– An expansion of our discussion on the phrase "officers of the United States" not being a term of art, including a discussion of Alexander Hamilton's use of the phrase in Federalist 67 and a discussion of the evidentiary implications of the fact that the phrase is not a term of art.
-An extensive expansion of our argument that the words "elect" and "appoint" were used interchangeably at the time of the Founding. To establish this point, we cite the text of the Constitution itself, early state Constitutions, the Articles of Confederation and Journals of the Continental Congress, and statements by many early founders.
– We have also added additional evidence with respect to the relationship between the Oaths & Affirmation Clause and Section 3
– Finally, we corrected a typo in our initial manuscript which suggested that the Postal Act of 1792 contained a reference to the President and Vice President as "officers of the United States." It was the Postal Act of 1799.
Posted at 12:27 AM