In September 2022, the CRS issued a report on Section 3 that cites an opinion article co-authored by
South Texas College of Law Houston professor
Josh Blackman and
Maynooth University law professor Seth Barrett Tillman (which in turn summarized a law review article Blackman and Tillman co-authored) in noting that the Presidency is not explicitly included in the text of Section 3, and as such, could possibly be exempt from the section's terms.
[57][58] Blackman and Tillman note that since Trump never took an
oath of office as a
member of Congress, nor as a
state legislator, nor as a
state executive or judicial officer, and has only taken the
presidential oath of office, that Trump can only be disqualified under Section 3 if the President is an "
officer of the United States".
[59]
Citing the
Commentaries on the Constitution of the United States written by
Supreme Court Associate Justice Joseph Story,
[60] Blackman and Tillman argue that the President is not an officer of the United States when considering usage in
Article I,
Article II, and
Article VI of the phrases "officer of the United States" and "office under the United States" which they contend refer to distinct classes of positions within the federal government.
[61][a] Blackman and Tillman further argue that the former phrase excludes all legislative branch officers of the federal government, that the elected officials of the federal government are not included among the "officers of the United States" under
Mississippi v. Johnson (1867),
[65] United States v. Hartwell (1867),
[66] United States v. Mouat (1888),
[67] and
Free Enterprise Fund v. Public Company Accounting Oversight Board (2010),
[68] and that there was no drift in the meaning of "officer of the United States" between the ratification of the federal constitution in 1788 and the
Mouat decision twenty years after the ratification of the 14th Amendment in 1868.
[69] Based upon their law review article, Blackman and Tillman also co-authored a law review article in response to Baude and Paulsen.
[70]
Conversely, citing a law review article written by
Indiana University School of Law professor
Gerard Magliocca,
[71] the CRS report also notes an exchange in congressional debate between
Maryland Senator Reverdy Johnson and
Maine Senator Lot M. Morrill during the drafting process of Section 3 in concluding that it could be more likely that the President is an officer of the United States subject to disqualification under the section:
[Mr. JOHNSON.] ... I do not see but that any one of these gentlemen may be elected President or Vice President of the United States, and why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation. ...
Mr. MORRILL. Let me call the Senator's attention to the words "or hold any office, civil or military, under the United States."
Mr. JOHNSON. Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am; but I was misled by noticing the specific exclusion in the case of Senators and Representatives. ...
—
Congressional Globe Senate, 39th Congress, 1st Session, May 30, 1866. p. 2899.
[72][57][73]
Baude and Paulsen likewise cite the exchange between Senators Johnson and Morrill in disputing Blackman and Tillman's argument, and argue further that Blackman and Tillman's argument "implausibly splits linguistic hairs".
[74] In May 2023, the
British Journal of American Legal Studies accepted a law review article written by John Vlahoplus that argues that in the context of Section 3 the President is an officer of the United States and the Presidency is an office under the United States, cites the 1862 statute formulating the
Ironclad Oath, which said "every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States",
[75] and argues that this acknowledged the Presidency as an "office ... under the government of the United States".
[76]
Blackman and Tillman cite the fact that the Committee of Style at the
1787 Constitutional Convention shortened the use of "Officer of the United States" in the
Presidential Succession Clause of Article II, Section I to "Officer" and changed "[The President, the Vice President] and
other civil Officers of the United States"
https://en.wikipedia.org/wiki/2024_presidential_eligibility_of_Donald_Trump#cite_note-78 [emphasis added] to "The President, Vice President and
all civil Officers of the United States" [emphasis added] in the
Impeachment Clause of Article II, Section IV as evidence that the phrases "officer of the United States" and "office under the United States" were not used indiscriminately by the Framers.
[77][78][79] Despite the fact that the
Presidential Electors Clause of Article II, Section I requires that "no ... Person holding an Office ... under the United States, shall be appointed an Elector",
[80] that the
No Religious Test Clause of Article VI requires that "no
religious test shall ever be required as a qualification to any office ... under the United States",
[81][82][c] and that the
Impeachment Disqualification Clause of Article I, Section III states that conviction in a
federal impeachment trial extends to "disqualification to hold and enjoy any Office ... under the United States",
[54][84] Blackman and Tillman argue that elected officials do not hold "offices under the United States" under the
Constitution's first seven articles and take no position on whether the Presidency and Vice Presidency are "office under the United States" in Section 3.
[85][86] Blackman and Tillman also claim that the
Clerk of the House of Representatives and the
Secretary of the Senate do not take an oath of office pursuant to the
Oath or Affirmation Clause of Article VI.
[87]
University of Maryland School of Law professor Mark A. Graber has noted that a congressional report presented to the
39th United States Congress concluded that "a little consideration of this matter will show that 'officers of' and 'officers under' the United States are ... 'indiscriminately used in the Constitution.'"
[88][89] In delegating to Congress the power to pass legislation providing for the case of a dual vacancy in the Presidency and Vice Presidency, the Presidential Succession Clause states that Congress shall "declar[e] what Officer shall ... act as President, and such Officer shall act accordingly".
[90] Pursuant to the Presidential Succession Clause, the
2nd United States Congress passed the
Presidential Succession Act of 1792 that included the
Speaker of the House of Representatives and
President pro tempore of the Senate in the
presidential line of succession.
[91][92] The CRS and the
Continuity of Government Commission have noted that the use of "Officer" in the clause caused debate in Congress at the time over whether including legislative branch officers in the presidential line of succession was constitutional, with opponents of the bill (who included
James Madison) arguing that the use of "Officer" in the clause referred to "Officer of the United States" and that officers of the United States were limited to executive branch officers.
[91][92]
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