I thought about submitting this as a “link post,” but part of the purpose of my write-up is to collect more than just the one article on the subject. What motivated this was my coming across an article in The Guardian. I know, it’s not quite up to the media standards that I prefer, but this particular article is talking about an amicus brief filed by a number of professional historians with the Supreme Court, relating to the case regarding Trump’s disqualification from presidency by Colorado. So if you don’t like The Guardian’s story, you can look to the amicus brief directly (PDF).

The brief was filed by twenty-five history professors (with high accolades, not a bunch of random profs from local community colleges) and offers an in-depth analysis of the meaning of Section 3 of the Fourteenth Amendment. Importantly, they approach this from a historical and textual angle, which should be notable, because many members of the Supreme Court are purported to be originalists. These include: Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett, and to a more limited extent John Roberts and Samual Alito (with caveats, in that Alito has been said to selectively apply originalism to arrive at conservative outcomes).

The historians cite a range of evidence, including debate on the amendment which spells out that the presidency is one of the offices which the amendment prohibits from those who are excluded. This comes up again when they talk about the amnesty bill for former confederates, and the concern that Jefferson Davis might be nominated as president. This again shows that the contemporary meaning of the language was that the presidency was an office that was barred from the former confederates.

They also note Andrew Johnson referring to himself as the chief executive officer of the United States. In addition, the historians go back further to the framing of the constitution, citing numerous instances in which the constitution identifies the presidency as an office, the framers referring to it as an office and to the president as an officer.

Going beyond the brief, there are more bits of information that are relevant to the discussion. First is several SCOTUS cases. In U.S. Term Limits v. Thornton (1995) says that:

The Clauses also reflect the idea that the Constitution treats both the President and Members of Congress as federal officers.

Another case, United States v. Mouat, 124 U.S. 303 (1888), said that

United States v. Germain … distinctly pointed out that under the Constitution of the United States, all its officers were appointed by the President

But that’s not quite accurate. United States v. Germaine, 99 U.S. 508 (1878) said:

The Constitution, for purposes of appointment, very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate.

The decision in United States v. Mouat seems to have omitted or overlooked the bolded clause. The appointed officers are all appointed by the president. But that doesn’t mean that the president is not an officer, just seated in a different manner.

Then in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010), John Roberts says:

The diffusion of power carries with it a diffusion of accountability. The people do not vote for the “Officers of the United States.” Art. II, §2, cl. 2. They instead look to the President to guide the “assistants or deputies … subject to his superintendence.” The Federalist No. 72, p. 487 (J. Cooke ed. 1961) (A. Hamilton).

But it seems that he’s doing a similar thing as the Moaut case. Article 2, Section 2, Clause 2 says “all other officers,” which does not preclude the president from also being an officer. The presidency had already been established as an office in Article 1 (e.g., they can be impeached, this is discussed in the historians’ brief), and how the presidency is filled has already been provided earlier. Roberts also cites Federalist No. 72 as context, and that document also identifies the chief magistrate (i.e., the president) as an office.

And not SCOTUS, but in another recent case Trump’s own legal team argued -- successfully -- that the president is an officer of the United States. This is noted in the wiki page for Officer of the United States, citing K&D LLC v. Trump Old Post Office, LLC, 951 F. 3d 503.

Finally, and I think it was mentioned here recently but I want to add it in for sake of completeness: Antonin Scalia, referred to by some as the “intellectual anchor for the originalist and textualist position” (see his wiki page), wrote in a concurrence that the presidency is an officer of the United States as it pertains to the constitution. This is described in an article on Lawfare Media. His letter to Tillman clarifies his meaning and reinforces my comment regarding the US vs Mouat case: The presidency is an office, just not one of those which are appointed under Article 2, Section 2, Clause 2:

President and Vice President hold their offices is “provide[d] otherwise” by the Constitution. As is the manner by which the Speaker of the House and the President Pro Tempore of the Senate hold theirs.

My thoughts

I’ve already provided a fair bit of my thoughts in the summary/discussion above. As I noted, one of the reasons I wrote this up was to collect in one place the “latest” thoughts on the matter. My opinion is that the presidency is clearly an officer of the United States. All of the arguments to the contrary that I’ve seen appear to use some selective reading or otherwise strained rationale to exclude the president from that classification.

Some questions / prompts

• Any thoughts on the historians’ analysis here? Is it a strong argument? Is it beside the point?
• Will the justices who are (at least nominally) originalists be persuaded?
• Does the analysis by the historians here move the needle for anyone who previously thought that the president was not an officer?