If President Trump is not an ‘officer of the United States,’ Section 3 should not apply

by Elad Hakim

Op-ed by Elad Hakim | Photo: Alamy

As President Donald J. Trump continues to dominate the field, some are looking to disqualify him from the ballot in different states pursuant to Section 3 of the Fourteenth Amendment, which states:

“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.”

The gist of the argument is that Trump allegedly engaged in an insurrection against the United States and is, therefore, prohibited from holding office.

There are many reasons why this interpretation or argument should fail.

There was no insurrection

To begin, there is no evidence that Trump engaged in an insurrection nor proof that an insurrection occurred. As a matter of fact, the Senate acquitted Trump of such ridiculous charges during the second impeachment.

Section 3 requires an act of Congress for enforcement

Additionally, there are grounds to argue that enforcement of this section must come from Congress pursuant to Section 5, which states, “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” If this is the case, it is hard to imagine how anyone other than Congress has standing to enforce this provision.

The Constitution is clear about the qualifications for president

Moreover, the Constitution is very clear about the qualifications for president. Article II, Section 1, Clause 5 specifically states:

“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”

In other words, to be eligible, a person must be a natural-born citizen of the United States, at least 35 years old, and a resident of the United States for at least 14 years.

In a previous report written by Seth Barrett Tillman, Tillman noted:

“It is widely accepted that the Supreme Court’s decisions in Powell v. McCormack and U.S. Term Limits, Inc. v. Thornton have come to stand for the proposition that neither Congress nor the States can add to the express textual qualifications for House and Senate seats in Article I. Importantly, the rationale of Powell and U.S. Term Limits, Inc.—i.e., the primacy of the written Constitution’s express provisions setting fixed textual qualifications—equally applies to the qualifications for the presidency (and vice presidency) in Article II.  Indeed, this extension of Powell and U.S. Term Limits, Inc. appears uncontroversial.”

In other words, Tillman argued that the constitutional qualifications for president are exclusive and that Congress has no authority to add additional qualifications except when specifically authorized to do so. Therefore, assuming Congress does not make a move to enforce Section 3, any other effort to prevent Trump from appearing on the ballot would likely face legal hurdles due to the constitutional language setting forth the sole requirements for one seeking to become president.

The president is not an “officer of the United States”

Finally, and perhaps most importantly, Section 3 has a jurisdictional component and applies to a person 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. Trump was not a member of Congress or any state legislature and was not an executive or judicial officer of any state. Therefore, the only way this section would apply to him is if he is deemed an “officer of the United States.”

However, there are various compelling arguments against such an interpretation. In a 2021 article in Reason, author Josh Blackman discussed some of the more compelling reasons why the president is not considered an “officer.”

Specifically, Blackman noted:

“There is a recent Supreme Court opinion discussing the scope of the Constitution’s ‘Officers of the United States’-language. In Free Enter. Fund v. Pub. Co. Accounting Oversight Bd. (2010), Chief Justice Roberts observed that “[t]he people do not vote for the ‘Officers of the United States.'” Rather, ‘officers of the United States’ are appointed exclusively pursuant to Article II, Section 2 procedures. It follows that the President, who is an elected official, is not an ‘officer of the United States.'”

Blackman also pointed to a very early Supreme Court case to bolster the argument that the president is not an “officer” of the United States:  

“In United States v. Mouat (1888), Justice Samuel Miller interpreted a statute that used the phrase ‘officers of the United States.’ He wrote, ‘[u]nless a person in the service of the government, therefore, holds his place by virtue of an appointment by the president, or of one of the courts of justice or heads of departments authorized by law to make such an appointment, he is not strictly speaking, an officer of the United States.'”

As Blackman further noted, in 1943, Attorney General Francis Biddle referenced Miller’s opinion and explained that “under the Constitution of the United States, all its officers were appointed by the President . . . or heads of departments or the courts of law.” This position was reaffirmed by the Office of Legal Counsel in 2007 when it considered officers of the United States within the meaning of the Appointments Clause.

As is evident, there are many arguments that Trump can possibly utilize to counter any efforts to block him from seeking the presidency pursuant to Section 3 of the Fourteenth Amendment. Ultimately, the courts will decide this issue, which could eventually end up in front of the Supreme Court.

While many intricate and nuanced arguments could be raised, the jurisdictional argument might be the quickest way to shut the door. If the president is not an “officer of the United States,” Section 3 does not apply, and any such efforts to disqualify him on such grounds should fail.

Mr. Hakim is an attorney and columnist. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, American Thinker, and other online publications. He is also a regular guest on OANN’s Tipping Point, and has appeared on Newsmax, Steadfast and Loyal Podcast with Allen West, The Dave Weinbaum Show, and Real America’s Voice. The views expressed herein are the author’s own and do not constitute legal advice.   

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