There are many difficult legal and philosophical questions surrounding the litigation efforts to disqualify former President Donald Trump from presidential election ballots by virtue of Section 3 of the Fourteenth Amendment. Among them are: (1) What counts as “insurrection or rebellion” against the United States for purposes of Section 3, and what does it mean to “have engaged” in these activities? (2) What, precisely is the role of the judiciary in this realm, and can state, rather than federal courts, make determinations that result in ballot exclusion of Mr. Trump?; and (3) Relatedly, what is the process that is required (or due) to make the factual findings that might underlie ballot exclusion? If and when the U.S. Supreme Court takes the case from Colorado (or a case from another state involving Section 3), it will have to confront these questions head on. At this point, without having studied these particular questions in more depth, I venture no opinion about what the right legal answers are.
But in the past week I have seen several essays criticizing the Section 3 efforts on grounds that are plainly not thoughtful or persuasive. In today’s column and my next one, I take up two prominent examples.
Last Wednesday in Slate, Professor Larry Lessig, in an essay entitled The Supreme Court Must Unanimously Strike Down Trump’s Ballot Removal, argued that the Colorado Supreme Court’s ruling was erroneous because “Section 3 of the 14th Amendment does not apply to Donald Trump.” Lessig begins his analysis by observing:
The puzzle in Section 3 is that it seems as if the framers of that text were just sloppy in their enumeration. The clause bars insurgents from being “a Senator or Representative in Congress, or elector of President and Vice President, or [to] hold any office, civil or military, under the United States, or under any State.” The obvious question is why they would enumerate “Senator or Representative” — not to mention “elector of President” — but not the president.
But when you begin, as Professor Lessig does, with a fatally flawed premise—in this case the notion that specific mention of Senators and Representatives but not the President poses a puzzle—you are destined to go nowhere. There is no puzzle here to solve; the presidency is an “office under the United States” so it is mentioned specifically, just not by name. Why, then, are Senators and Representatives identified with more particularity? Because, as everyone who has ever studied constitutional law should know, do not “hold office under the United States.” That term—office under the United States—is reserved for executive and judicial officers, not federal legislators.
This is made clear in the so-called “Incompatibility” Clause of Article I of the Constitution (the Article that focuses on Congress). It says: “no Person holding any Office under the United States, shall be a Member or either House [of Congress] during his Continuance in Office.” Thus, you can’t hold office under the United States and be in Congress at the same time, so that if Section 3 of the Fourteenth Amendment had simply included persons holding office under the United States, that Section would not have covered members of Congress. Hence their inclusion by name.
The fact that a member of Congress is not an officer under the United States also explains why he is not subject to the two-house process of impeachment and trial, but instead (as was illustrated by the recent George Santos episode) can be removed only by a 2/3 vote of the house in which he sits. The impeachment provisions of the Constitution say that “all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
So the “puzzle” here is not the differential textual treatment of federal legislators and Presidents in Section 3 (Presidents are covered by category and thus need not be covered by particular title); the puzzle is why Professor Lessig seems to ignore this. His essay spends most of its digital ink arguing that it is inappropriate for a court to add the President to Section 3’s coverage on the ground that it would be senseless (or absurd) for Presidents not to be covered. (He also spends time discussing whether the drafters of Section 3 “expected” Presidents to be covered, but originalism has long eschewed reliance on “expectations” of drafters that are not reflected in the public meaning of the texts that are enacted.) I need take no position here on the question of whether we would have to read the President as being covered whether or not Section 3 already included him. But because the President is covered (by Section 3’s inclusion of officers under the United States), the “absurdity” argument Professor Lessig dwells on is beside the point.
Now there are those who challenge whether the President is an officer under the United States (although there are very few prominent academics from highly regarded institutions who take that position). But Lessig doesn’t appear to make (and certainly spends no time developing) that challenge. Indeed, he says explicitly: On the question “[w]hether the president is properly described as occupying an ‘office of the United States’ . . . the Colorado Supreme Court made a strong argument that the president is.”
Professor Lessig’s essay never returns to this “strong argument” to debunk it, making all the time and effort he spends on whether a sensible Section 3 could have intentionally excluded the President (which is beside the point if the President does hold office under the United States) the real puzzle.