Thursday, February 15, 2024

Of Course Presidents Are Officers of the United States

 

Of Course Presidents Are Officers of the United States

To think otherwise threatens the entire idea of a constitutional republic.

By Mark A. Graber


FEBRUARY 15, 2024, 6:30 AM ET

Last week, Donald Trump’s lawyers attempted to convince the Supreme Court that he was a 16th-century European monarch who cannot be disqualified from holding office, because he enjoys immunity from certain constitutional laws. Jonathan Mitchell, Trump’s lawyer, began his argument before the Court by declaring, “Trump is not covered by Section 3 [of the Fourteenth Amendment] because the president is not ‘an officer of the United States’ as that term is used throughout the Constitution.”

This effort to avoid the designation “officer of the United States” smacks of a conclusion in want of a rationale. Neither Trump nor his defenders have found a single quotation from the 1860s declaring that the president is not an officer of the United States for purposes of Section 3. Proponents of disqualification, by comparison, have unearthed numerous assertions that Section 3 was meant to encompass all offices and all officeholders. Neither Trump nor his defenders have explained why the Constitution would permit a president who encouraged an attack on Congress to hold all offices in every state and the national government while disqualifying from every office a dogcatcher who was a foot soldier in an insurrection.

Nevertheless, this position has gained a bizarre amount of scholarly support among so-called originalists and textualists, and some justices may now be leaning toward this view. To find this argument persuasive requires an obsession with technicalities that forgoes any big-picture understanding of what made the American republic different from the monarchies that preceded it. Should the Supreme Court fail to grasp this difference, the resulting decision would threaten to vest presidents with the attributes of the monarchs rejected by Americans in both the First and Second Foundings.

In those regimes, some person made law but were not bound by or accountable to law. English kings, Henry VIII understood well, were not officers of England, but sovereign rulers of the land. To the extent that Henry VIII was an officer or held an office, he was an officer under God. No mere English officer was empowered to judge the conduct of the sovereign King. The Tudors and Stuarts appointed “officers of the Crown.” Such officers got their authority from the King and were answerable only to the King.

By contrast, Americans in 1787 and 1866 (when the Fourteenth Amendment was written) worked within a framework that sharply distinguished officeholders in a constitutional order in which the people were sovereign from officeholders in those other orders. In a constitutional regime, all persons who exercise government power are officers; as such, their authority is prescribed by law, and they are accountable to law. The Preamble to the Constitution of the United States recognizes that the people are sovereign in the United States. No person with governing responsibilities is above the law. The legal authority that all officers exercise is ultimately grounded in the Constitution and laws of the United States, not in the sovereign president, sovereign Congress, or sovereign Supreme Court. No one in the United States is an “officer of the president” or an “officer of Congress” or an “officer of the Supreme Court.”

Americans from the very beginning recognized that presidents in a regime in which the people were sovereign were officers of the United States. Andrew Johnson, who was president when the Fourteenth Amendment was framed, routinely referred to himself as “the chief civil executive officer of the United States.” Members of Congress consistently referred to the president as an officer of the United States. When Representative James Ashley in 1867 called for an investigation to determine whether “any officer of the Government of the United States” had committed an impeachable offense, both he and Representative John Bingham, considered the primary framer of the Fourteenth Amendment, agreed that the president was a civil officer of the United States subject to investigation. All exercises of power in America (presidential and otherwise) had to be authorized by law, and all power-holders were subject to law.

Members of Congress understood that one consequence of the transition from a regime in which a person or institution was sovereign to a regime in which the people were sovereign was some confusion at the use of the word officer in the Constitution. Representative James A. Bayard in 1799 acknowledged that the word office in the Constitution was “incautiously used.” Members of Congress also easily acknowledged that the president was not an officer for purposes of the commissions clause in Article II because the president did not commission the president. Many, not all, recognized that members of Congress were not civil officers under the impeachment clause because the Constitution provided for a distinct means for removing representatives and senators who committed misdeeds. Nevertheless, a consensus existed on officeholding. As articulated by both the prosecution and the defense in the impeachment hearings of Senator William Blount in 1799, presidents and members of Congress were officers of the United States unless the particular constitutional context made clear that a different treatment was warranted. Immediately after declaring that presidents and senators were not officers of the United States for purposes of the impeachment clause, Bayard insisted that the president, senators, and representatives were officers under the Constitution for purposes of the emoluments clause.

The Republican members of the 39th Congress who framed the Fourteenth Amendment consciously worked within the American understanding of popular sovereignty and officeholding. Members routinely referred to the president as an officer of the United States. Senator Benjamin Wade of Ohio, a Republican, maintained that the president was “the chief executive officer of the United States.” Senator James Guthrie of Kentucky, a Democrat, did the same. Less than a month after Congress sent the Fourteenth Amendment to the states for ratification, the House of Representatives approved a committee report that declared that the Constitution used the phrases “officer,” “officer of the United States” and “officer under the United States” indiscriminately, and that all officers should be considered officers of and under the United States unless the context makes clear that a more limited use was intended.

Trump and his defenders do not comprehend the significance of denying that the president is an officer of the United States. Trump was a president bound by law, not a monarch above the law. As an officer of the United States, he engaged in an insurrection against the Constitution he swore to protect, preserve, and defend, and the laws of this nation—laws he is subject to, laws that prohibit any such person from officeholding ever again. Henry VIII would not understand, but George Washington and the men who drafted Section 3 of the Fourteenth Amendment would.

Mark Graber is a professor at the University of Maryland Carey School of Law.