“Of” and “Under” the United States (Updated)
Michael Ramsey

Calabresi continues to think that the presidency is an “Office Under the United States,” as he says in the post that Congress can and should disqualify Trump from the presidency through impeachment (which is an “Under” Clause).

 

And Tillman and Blackman have taken no position on the “Under” phrase in the 14th Amendment, only in the original Constitution. In the 14th Amendment they take a position only on “of.”

 

To recap (to be sure I have it right):

 

Section 3 of the Fourteenth Amendment says that (a) no one can hold an "office … under the United States" who (b) engaged in insurrection after taking an oath as an "officer of the United States."

 

Under (a), the question is whether the presidency is an office "under the United States."  If not, then no one (including Trump) can be disqualified from the presidency.

 

Under (b), the question is whether the President is an "officer of the United States."  If not, then Trump can't be disqualified from the presidency (or any other position) because, although he took an oath, it was not as an "officer of the United States."

 

Calabresi (see here), Judge Mukasey (see here) and Blackman & Tillman (see here, Part V) say that the President is not an "officer of the United States."

 

David Weisberg (see here) says the presidency isn't an office "under the United States," at least for Fourteenth Amendment purposes, mainly because of the way the clause in Section 3 is phrased (omitting any specific reference to the presidency while specifically calling out, for example, Senators and Representatives).  Mukasey hedges, saying both views are plausible.

 

As Professor Baude says, Calabresi must think the presidency is an office "under the United States," at least under the original Constitution, because he says (in the post linked above):

 

As a result of Trump's behavior that day, I wrote an op-ed supporting his second impeachment for the commission of a High Crime and Misdemeanor.  I urged that Trump be disqualified from ever holding any federal office again.  The Senate foolishly failed to convict and disqualify Trump, and so now he is running for re-election.

 

Article I, Section 3 says that judgment in cases of impeachment shall extend only to removal from office and "disqualification … [from] any office of honor, Trust or Profit under the United States." So the Senate could have disqualified Trump from running again only if the presidency is an office "under" the United States.

 

Blackman and Tillman have the opposite view on impeachment but their article on the Fourteenth Amendment doesn't address the "under" point.  Given what they say about the "officer of" point, though, I'm not sure how they wouldn't take the same view of "under" in the Fourteenth Amendment.

 

On the "officer of" point, Calabresi says it's a "technicality" that may not have been understood by the drafters of the Fourteenth Amendment.  Assuming that he (and others) are right about the technical meaning in the original Constitution but also that no one in 1866-1868 realized it, that sets up an interesting question of originalist interpretation.

 

UPDATE: A further clarification from Josh Blackman, who writes:

 

Blackman and Tillman have the opposite view on impeachment but their article on the Fourteenth Amendment doesn't address the "under" point.  Given what they say about the "officer of" point, though, I'm not sure how they wouldn't take the same view of "under" in the Fourteenth Amendment.