The President Is Not An Officer of the United States

As multiple courts, Congress, and the Constitution have made clear

In light of the US Supreme Court reversing the Colorado Supreme Court and denying States the power to enforce Section 3 of the 14th Amendment, I thought I’d take a look at whether that even applies to the President.

I’ve argued for a while now that the President is not an Officer of the United States. I realize this seems counter-intuitive since, after all, he is the chief executive and that seems to make him an Officer.

But that doesn’t mean that is what the Framers meant in the Constitution. Let’s take a look at the Constitution when it speaks about Officers.

The Congress And Officers

Article I, Section 8, related to the military, militia, and Congress’ powers

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

The States control the Officers and training of the Militia, but the Congress governs them while called up for Service of the United States. Congress still has the ultimate power of discipline over the US Armed Forces.

Article I, Section 8, Power to make Laws

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

This section gives Congress (and only Congress) the power to make laws, including laws to enable the Executive Branch (any Department or Officer thereof) to execute their jobs. Notice that it is speaking about Officers of the Departments, which means the various parts of the Executive Branch. There is no mention of the President.

The President And Officers

Article II, Section 1, election and succession of the President

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. (Note: changed by the Twenty-Fifth Amendment.)

Notice that the Framers talk about the President and Vice President and Officers, who are not the President or Vice President. The former are elected and the latter are appointed. And if you read the Twenty-Fifth Amendment, written in 1965, it is clear that those who wrote and ratified have the same understanding that the President and Vice President and Officers are different.

Article II, Section 2, powers of the President

he (The President) may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices

Officers are clearly subordinate to the President.

Article II, Section 2, powers of the President

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:

The President appoints Officers of the United States.

Article II, Section 4, Impeachment

The President, Vice President and 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.

Notice that once again the President and Vice President are listed separately from Officers of the United States.

Oaths Of Office

Article VI, Section 3, Oaths of Office

1. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The only place in the original Constitution where the President and Vice President are not mentioned separately from the Officers.

The remainder of the original Constitution (pre Amendments) has no other reference to Officers of the United States. Reading what the Framers wrote, it is quite clear that they did not consider the President and Vice President the same as Officers. There are two significant reasons for this. First, the President and Vice President are elected by the People and are co-equal to Congress. Second, the Officers are appointed by the President and confirmed by Congress. In other words, the Officers are subordinate to both the President and Congress, who are co-equal authorities in the US government.

The next time that Officers of the United States are mentioned is the 14th Amendment. Parts of the original Constitution were clarified, modified, or undone by Amendments 1 through 15, but the meaning of Officers of the United States was never addressed. This says, to me, that everybody understood who and what the Officers were: the leaders of the various Departments subordinate to the President, Ambassadors, and the Justices/Judges of the Judicial Branch.

The 14th Amendment

Amendment XIV, Section 2, apportionment of representatives and electors

2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State

Here the Officers of a state are mentioned, along with President, Vice President, and Congress. Why? Simple, these are all people that are elected, not appointed. This is talking about positions of authority that are elected by the People, not appointed by authority.

Amendment XIV, Section 3, disqualification due to insurrection

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

So, here’s the kicker, the thing that everyone is arguing one way or another. But the arguments primarily revolve around whether insurrection or rebellion occurred. Side note: insurrection and rebellion are basically the same thing and involve violence against duly constituted authority, not political opposition, assembly, and protest.

But before we need to worry about insurrection or rebellion we need to look at that list of positions that someone cannot hold. That list is

• Congress critters

• Members of the Electoral College

• Civil and Military officers of the United States

• Civil and Military officers of any State

Notice it does not include the President or Vice President.

And who can be disqualified for engaging in insurrection or rebellion? Anyone who previously took an oath to support the Constitution of the United States in these positions

• Congress critter

• Officer of the United States

• Members of State Legislatures

• Executive and Judicial officers of any State

Notice, again, it does not include the President or Vice President. The next time Officers are mentioned is the 25th Amendment, addressing presidential incapacitation and succession.

The Courts

A state trial court in Colorado held that the President is not an Officer of the United States. The Colorado Supreme Court overturned the trial court, but then the US Supreme Court reversed Colorado. Seth Tillman says:

Because the Supreme Court of the United States reversed the decision of the Colorado Supreme Court, the opinion and order of the state trial court judge remains good, persuasive law. The Colorado state trial court held that the President of the United States is NOT an “officer of the United States.”

Now, this is not just my own thinking. Nor just Seth Tillman’s thinking. The Constitution is pretty easy to understand, but it is helpful to know what the courts think also. In 1878, the case of United States v. Germaine was decided by the Supreme Court. This case revolved around who is an Officer of the United States, making it very helpful to us in our quest here. The decision said, among other things:

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.

You cannot be an Officer of the United States without being appointed by the President and confirmed by the Senate.

This Constitution is the supreme law of the land, and no act of Congress is of any validity which does not rest on authority conferred by that instrument. It is therefore not to be supposed that Congress, when enacting a criminal law for the punishment of officers of the United States, intended to punish anyone not appointed in one of those modes.

This seems astoundingly clear. The President is not an Officer of the United States. The President appoints those Officers, who are subordinate to the President and Congress.

Final Thoughts

I think the confusion here is between the concept that someone holding an office must be an Officer and what the Constitution means by Officer. The President does, indeed, hold an Office and is therefore an Officer in common English. But, within the meaning of the Constitution, he is not.

The Constitution makes this quite clear. And the 14th Amendment does not grant Congress or the States the power to disqualify a former President from holding office due to insurrection or rebellion.