Here’s The Legal Question That Could Determine The 2024 Election

Here’s The Legal Question That Could Determine The 2024 Election

Arjun Singh on January 7, 2024

The disqualification of former President Donald Trump from the ballot in several states may depend on whether the U.S. Supreme Court believes that the president of the United States is an “officer of the United States” according to Section 3 of the 14th Amendment to the U.S. Constitution.

Trump, the leading candidate for the Republican presidential nomination, was disqualified from appearing on the primary ballots in Colorado and Maine after the former’s Supreme Court and the latter’s Secretary of State Shenna Bellows, respectively, ruled that he was ineligible for federal office under Section 3 of the 14th Amendment. T

hat provision of the Constitution, passed after the Civil War to prevent former Confederate leaders from holding federal office, reads: “No person shall…hold any office, civil or military, under the United States…who, having previously taken an oath…as an officer of the United States…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.”

Trump has since appealed both decisions, with the Colorado case being granted certiorari by the Supreme Court on Friday. One of the questions Trump has presented to the court in his petition for certiorari is whether, as the president, he was an “officer of the United States” as the term is used in the amendment, which elsewhere does not specify the president or vice president as such an officer, a question that has divided legal experts considerably.

“The answer is yes,” said Laurence Tribe, the Carl M. Loeb University Professor Emeritus of Law at Harvard University, to the Daily Caller News Foundation, answering whether the president is an officer of the United States. Tribe referred the DCNF to other commentaries he has published, where he has opined that the amendment’s prohibition covers “all officials who ever swore to support the Constitution.”

The president’s oath of office requires them to “preserve, protect and defend” the U.S. Constitution. “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States,” reads Article II, Section 1 of the Constitution.

Other scholars and experts, however, disagree. “You look at the Colorado opinion, and they say anybody who holds an officer as an officer [of the United States]. That’s not correct,” said Richard Epstein, the Laurence A. Tisch Professor of Law at New York University, to the DCNF, adding that “what you have to do is to take a look at the appointments clause under Article II, and you’ll see a very different interpretation cropping forward.”

The “appointments clause” refers to Article II, Section 2 of the Constitution, which specifies the power of the president to “nominate, and by and with the Advice and Consent of the Senate…appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” Epstein argues that the language of the appointments clause precludes the president from being considered an officer of the United States, since they must be appointed by the president and the president does not appoint himself.

“What clearly happens is the president is the person who holds an office but he’s not an officer. The officers are the people who are appointed under the appointments clause,” Epstein said. “It makes no sense to say that he is governed by it.”

This argument was echoed by Andy McCarthy, the former First Assistant U.S. Attorney for the Southern District of New York and a senior fellow of National Review Institute.

“I do not believe Section 3 of the 14th Amendment applies to the president (or, for that matter, to the vice president),” he told the DCNF.

“[T]he drafters of Section 3 intentionally omitted the president and vice president…it makes no sense that the drafters would include the electors for those positions, but not those positions themselves,” McCarthy explained, pointing out that the amendment mentions “elector[s] of President and Vice President” but excludes a mention of the presidency or vice presidency. “The default position in the law is that when important constitutional rights are at issue, a provision must be very clear before we conclude that it calls for the denial of those rights. Section 3 does not pass that test when it comes to the presidency.”

Other scholars, however, suggest that there is no clear answer to the question of whether the president is an “officer of the United States.” Jeremy Rabkin, a professor of law at the Antonin Scalia Law School of George Mason University, told the DCNF that “[t]here is, I believe, no court case which gives authoritative guidance on these questions.”

Rabkin, however, said he was “skeptical” that the amendment’s text included the president. “Art. II, Sec. 1 (last par.) sets out the oath which the president must take on assuming office. Art. VI, par. 3, then speaks of an oath which “executive … officers of … the United States” must take – but it is a somewhat different oath and the wording seems to take for granted that this provision does not apply to the President – presumably because [he’s] not an ‘officer of the United States,’” Rabkin wrote.

Rabkin also addressed the question of whether Trump committed an act of “insurrection” as defined by the amendment, about which he was similarly skeptical. “[I]nsurrection has a somewhat technical meaning, involving [the] use of force to displace the existing government. It’s not easy to conceive [of] a president – already a constitutional officer with authority to use force – leading an “insurrection” against the government (or himself?),” Rabkin wrote, adding that he was “also skeptical that the tumult in the Capitol on Jan. 6 was an “insurrection” since there did not seem to be a serious plan to displace the U.S. government with an alternative – or any serious plan.”

The U.S. Supreme Court will hear oral arguments in the case, named Trump v. Anderson, on Feb. 8. Both Colorado and Maine have halted the effects of their decisions pending judicial proceedings and the first primary event of the year, Republican caucuses in Iowa, will occur on Jan. 15.