I’ve not been deep within the weeds of the arguments about Part 3 of the Fourteenth Modification, in contrast to my constitutional regulation casebook coauthors: Mike Paulsen, Michael McConnell, and Will Baude. However it’s shocking to me that the previous President of the US appears to be placing most of his authorized eggs in a single basket—the argument that the President just isn’t an “officer of the United States.” That is the lead argument within the transient accessible right here. And for causes I can’t perceive—as a matter of authorized precept—this argument is now being superior by numerous conservative authorized luminaries.
Three observations:
1. The textual arguments superior within the transient are weak, however the elementary drawback is an absence of sophistication in regards to the interaction between semantics and context. Right here is an instance from pages 23-24: “every time this phrase appears in the Appointments Clause, the Commissions Clause, and the Impeachment Clause it excludes the President and refers only to appointed and commissioned officers rather than elected officials.”
However it’s not “this phrase” that excludes. Within the Appointments Clause and the Commissions Clause, it’s the context that makes clear that the President just isn’t in view, as a result of the President just isn’t appointing or commissioning himself. It isn’t the semantic content material of “officer of the United States.”
By analogy, if I had been to host a dinner for all of my colleagues at Notre Dame Legislation College, and I stated “all law faculty are welcome, but none are obligated to be there,” would I be saying that I, because the host, was not obligated to be there? After all I’d be obligated. Would I subsequently be saying that I used to be not “law faculty”? No. My utilization wouldn’t be advancing a slim view of the semantic area of “law faculty”; I’d as a substitute be utilizing the phrase in a context that indicated that I used to be clearly excluded.
And within the Impeachment Clause it’s not even the case that the phrase excludes the President, because it merely has an overlap with an excellent motive for the extra specification. It’s so vital to clarify that the President and Vice President could also be impeached—no small level towards the background of royal prerogative energy in England—that they’re spelled out particularly. That doesn’t imply they aren’t officers, and the transient’s suggestion that “all other civil officers” must be used doesn’t match the authorized drafting tradition of the late eighteenth and nineteenth centuries. To provide one other instance from that authorized drafting tradition, “necessary and proper” and “necessary or proper” and “necessary and appropriate” and so forth all meant precisely the identical factor (the kind of factor I explored right here). This common level additionally weighs towards any try to chop hyper-fine distinctions between an “officer of the United States” and an “office under the United States.”
2. So is Part 3 such a context the place the President is excluded? And right here the argument within the former President’s transient runs straight into the buzz-saw of what we might name the Andrew Johnson Downside. It’s onerous to think about that the Reconstruction Congress that proposed Part 3 of the Fourteenth Modification, and the state legislatures that ratified it—in the midst of an intense wrestle with President Andrew Johnson, and targeted on all the issues that might come from a President who was not on board with reconstruction—would say that the 2 individuals who ought to be allowed to be Confederates can be the President and Vice President. We will retrofit believable explanations for why the President and Vice President is likely to be totally different (e.g., the Lessig argument right here). However the Reconstruction Congress was in the midst of preventing tooth and nail with Andrew Johnson. That Congress thought President Johnson was imperiling all that the Union troopers fought for. Was that Congress creating an exception for President Johnson? The burden of proof for exhibiting that they had been in reality doing that’s so huge that it couldn’t be met besides with the clearest doable proof.
3. The argument on web page 23 of the transient {that a} presidential oath to “preserve, protect, and defend the Constitution” just isn’t an oath to “support” the Structure is risible. Strive explaining it to a baby. It’s an argument that ought to be handled with derisive scorn by everybody who encounters it. It’s the sort of magic-words literalism that’s the reason folks suppose they hate attorneys. Justice Scalia as soon as stated that if he accepted a sure argument “I would hide my head in a bag.” That could be a becoming response to the argument that the presidential oath doesn’t require the President to help the Structure.