Another issue on which the Supreme Court may be inclined to decide Trump v. Anderson without getting into whether former President Donald Trump engaged in insurrection is whether Section 3 of the 14th Amendment even applies to the president, perhaps the technical issue most widely debated among legal scholars. Of note, Trump makes this the lead argument of his briefing before the Supreme Court, spending more pages on it than any other issue.
Section 3 has two relevant portions for this question. First, disqualification is triggered by those “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.” One who has not taken such an oath and who is not listed cannot be disqualified under this provision.
The second portion of Section 3 relevant to whether Trump is disqualified states that “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.” Thus, one can only be disqualified for that which is specifically listed.
As to the oath, Article 6 of the Constitution requires, “The (U.S.) Senators and Representatives … and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States” to “be bound by Oath or Affirmation, to support this Constitution.” It does not list the president because the presidential oath is specified in Article 2, Section 1, where the president, among other things, swears or affirms to “preserve, protect, and defend the Constitution of the United States.”
The debate surrounding Section 3 and the oath is whether the president is someone who takes an oath “to support the Constitution.” Those who say Section 3 does apply to the president argue that “preserve, protect, and defend” is even broader than “support,” and thus the president is also taking an oath to support the Constitution. Those who argue Section 3 does not apply contend that Section 3 deliberately followed Article 6’s Oaths Clause by using “support” instead of the language the Constitution lays out for the president’s differently worded oath, and thus Section 3 is not referencing the president.
These arguments connect to the list of persons who have taken the oath mentioned in Section 3. The list does not include the president or vice president. Those who view Section 3 as applying to the president point to the language “office of the United States,” and argue that the president is an officer — the ultimate officer — of the United States. Asking the average person on the street the question of whether the president is a U.S. officer would almost certainly result in an “of course” every time. Additionally, Article 2, Section 1 refers to the “President of the United States of America” as an “Office.”
In support of this reading, scholars have found examples from around the time of the founding and the time the 14th Amendment was adopted referring to the president as an officer of the United States. Finally, the argument goes, it seems absurd to exclude the most important officers — the president and vice president — from the disqualification clause.
Those who disagree do not dispute that the presidency is an office and the president an officer. Rather, they contend that the term “officer of the United States” has a special, legal meaning, referring to appointed and not elected positions, thus excluding the president (and members of Congress). And for evidence, they point to three clauses in the Constitution in which the president is not treated as an officer of the United States: the Impeachment Clause, the Commissioning Clause and the Appointments Clause. Thus, the drafters of Section 3 were drawing on this understanding in writing Section 3.
Additionally, several Supreme Court opinions and contemporaneous newspaper articles support this reading. Interestingly, the first draft of Section 3 included the president and vice president, but this was subsequently removed (we’re not sure why).
As to the absurdity argument regarding excluding the president and vice president, the response is that the 14th Amendment drafters were worried about former Confederates winning congressional or state elections, but not winning national elections, so the two offices were excluded.
Related arguments on both sides are made concerning Section 3’s phrase “hold any office, civil or military, under the United States,” which refers to what one is disqualified from. Proponents of it applying to Trump argue that this general catch-all applies to the presidency. Also, during the congressional debates over whether to ratify the 14th Amendment, one senator asked why presidents weren’t covered and another said they were under the phrase noted above.
Those opposed to this applying to Trump argue the term has a special meaning that excludes the president for the reasons included above, as well as for two additional reasons.
First is the ordering of those listed in the first part of the section. That ordering starts with the greater (U.S. senators and representatives) and moves to the lesser (state officers). It would thus disrupt that order, and be odd, to place the president in the middle of that list in a general catch-all phrase. To paraphrase a famous quip by Justice Antonin Scalia, drafters of constitutional provisions don’t “hide elephants in mouseholes.”
Second is the fact that there are many who hold federal office without being considered “officers under the United States,” such as FBI officers. And such are not considered to be impeachable or able to be put in the line of succession to the presidency, as is true of “officers under the United States.”
If upon reading this you find both sides persuasive, you’re not alone. (And if you think one side has a slam-dunk winning argument over the other, you may be engaging in some confirmation bias or motivated reasoning.) Perhaps the nation’s leading legal scholar on the 14th Amendment is University of Richmond law professor Kurt Lash. And he told the Supreme Court in an amicus brief that the text was ambiguous and the ratifying debates did not resolve that ambiguity.
What does this ambiguity portend for the Supreme Court’s decision? It probably means the Supreme Court will be reluctant to remove Trump from the ballot based on an issue that seems like it’s roughly a tie. But the Supreme Court may also be hesitant to rule for Trump on an issue that most people not trained in the law would intuitively think would come out against him. That being said, expect the justices to pay a fair amount of attention to this issue during Thursday’s argument.