Of Course Presidents Are Officers
of the United States
To think otherwise threatens the entire idea of a
constitutional republic.
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.