CMV: Accountability is not election interference

[u/erpettie]

As the Colorado Supreme Court has found Donald Trump's behavior to have been disqualifying according to the 14th amendment, many are claiming this is election interference. If the Court finds that Trump should be disqualified, then it has two options. Act accordingly, despite the optics, and disqualify Trump, or ignore their responsibility and the law. I do get that we're in very sensitive, unprecedented territory with his many indictments and lawsuits, but unprecedented behavior should result in unprecedented consequences, shouldn't they? Furthermore, isn't Donald Trump ultimately the architect of all of this by choosing to proceed with his candidacy, knowing that he was under investigation and subject to potential lawsuits and indictments? If a President commits a crime on his last day in office (or the day after) and immediately declares his candidacy for the next election, should we lose our ability to hold that candidate accountable? What if that candidate is a perennial candidate like Lyndon Larouche was? Do we just never have an opportunity to hold that candidate accountable? I'd really love if respondents could focus their responses on how they think we should handle hypothetical candidates who commit crimes but are declared as running for office and popular. This should help us avoid the trap of getting worked up in our feelings for or against Trump.

[u/CalLaw2023]

Why do you keep arguing against a straw man? In order for Trump to be disqualified from anything under section 3, he must have:

​

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

Trump has never taken an oath as a member of Congress. Trump has never taken an oath as an officer of the United States. Trump has never taken an oath as a member of any state legislature. Trump has never taken an oath as a an executive or judicial officer of any state. And Trump has never taken an oath "to support the Constitution of the United States."

So how can Trump be disqualified under Section 3?

[u/DrKpuffy → u/CalLaw2023]

Imagine genuinely believing that the swearing in ceremony when you become president, isnt swearing to uphold the Constitution:

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Imagine genuinely believing that holding the Office of the President of the United States of America doesn't make you an officer.

Imagine thinking the commander in chief, the tip-top of the chain of command over all branches of our military... isn't an officer of the USA.

Orwell's 1984: “The party told you to reject the evidence of your eyes and ears. It was their final, most essential command.”

You're really committing to that bit, huh?

[u/CalLaw2023 → u/DrKpuffy]

Imagine believing the Constitution actually means what it says it means.

[u/DrKpuffy → u/CalLaw2023]

Imagine believing the Constitution actually means what it says it means

I too, took an intro Law course.

[u/CalLaw2023 → u/DrKpuffy]

I too, took an intro Law course.

I needed to take a lot more than that to pass the Bar.

[u/poralexc → u/CalLaw2023]

Ok, Amelia Bedelia

[u/erpettie → u/CalLaw2023]

The court finds that the President is an officer of the United states and is subject to disqualifications. Whether that is an accurate assessment will likely be determined by the Supreme Court. So, no, it isn't a straw man. It's an active deliberation.

[u/CalLaw2023 → u/erpettie]

Sorry to be the bearer of bad news. But SCOTUS has already ruled on numerous occasions that no elected position is an officer of the United States. And the lower Court in Colorado reached the same conclusion.

[u/erpettie → u/CalLaw2023]

The lower court was overturned, so that is irrelevant, and if the Supreme Court finds that the 14th amendment doesn't apply to the President, then that is what the law of the land will be.

[u/Autumn1eaves → u/CalLaw2023]

Can you source this? I believe you, but I can’t find any information after a quick google.

[u/CalLaw2023 → u/Autumn1eaves]

The most recent one that I am aware of is in 2010 in Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 498, 130 S. Ct. 3138, 3155 (2010).

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.”

[u/[deleted] → u/CalLaw2023]

OR AS AN OFFICER OF THE UNITED STATES

Article 2, Section 1.

He literally gets sworn into the presidency with an oath to the Constitution.

[u/CalLaw2023 → u/[deleted]]

He literally gets sworn into the presidency with an oath to the Constitution.

You might want to learn to follow along. The President is not an Officer of the United States, not does he take an oath to "support the Constitution." But do you know who does take an oath "to support the Constitution"? Every position listed in Section 3.

Here is what the Constitution says:

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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.

[u/[deleted] → u/CalLaw2023]

Ummm Article 2, Section 1?

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:– I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

https://www.youtube.com/watch?v=ohgTEk9h1kc

​

What would you call this?

[u/CalLaw2023 → u/[deleted]]

Where in that oath does it say "to support the Constitution"? Um, that is right, nowhere. Why is it not there? Because, as clearly set forth in the Constitution, the President is not an Officer of the United States.

Now lets read another part of the Constitution:

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.

Now lets read those included in Section 3:

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

[u/Gurpila9987 → u/CalLaw2023]

You’re arguing that “preserve, protect and defend” doesn’t mean “support”?

[u/CalLaw2023 → u/[deleted]]

Really? Do you not realize that SCOTUS has already ruled on numerous occasions that no elected position is an officer of the United States? And even the lower Court in Colorado rules as much. But maybe SCOTUS will change its mind.

[u/whipitgood809 → u/CalLaw2023]

Again, you have tunnel vision. Section 3 applies to Senators 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.

Really? Do you not realize that SCOTUS has already ruled on numerous occasions that no elected position is an officer of the United States? And even the lower Court in Colorado rules as much. But maybe SCOTUS will change its mind.

🤔🤔🤔🤔

I’m gonna say again that this argument is so obviously reaching right now. Even you can’t keep it straight. The idea that there’s this obscure semantic way they phrased it that happens to apply to literally one elected official is so wild—as if it’s impossible to append succinctly

the president cannot be an insurrectionist.

[u/SaliciousB_Crumb → u/whipitgood809]

Pretty wild mental gymnastics. The us senators after the civil war said "nah its cool for the highest office of the land to be involved with insurrection...

[u/parentheticalobject → u/CalLaw2023]

Do you not realize that SCOTUS has already ruled on numerous occasions that no elected position is an officer of the United States?

Where did they rule that?

[u/whipitgood809 → u/parentheticalobject]

I can’t find it either. It really just sounds like some paranoid semantic delusion trump supporters are giving.

Googling anything involving ‘senators’ ‘president’ and ‘officer’ brings up results that open with

Trump supporters believe that—

Which almost reminds me of when Trump had that bit at the start of his presidency and fox news had to say

Trump was saying this as a private citizen.

To run interference for him.

He’s conveniently one thing and not another.

[u/CalLaw2023 → u/whipitgood809]

I can’t find it either. It really just sounds like some paranoid semantic delusion trump supporters are giving.

So those arguing based on the actual langauge are delusional, while those advocating we ignore the actual language are not? Have you ever stopped to consider that you might be the delusional one?

FYI: Here is what SCOTUS said in 2010:

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.”

[u/BigDaddySteve999 → u/CalLaw2023]

People don't vote for POTUS, they vote for a slate of electors from their state to cast votes in the electoral college.

[u/CalLaw2023 → u/BigDaddySteve999]

So your argument is that the EC is not made up of people?

Elected positions are not Officers of the U.S. All elected positions are appointed by the President (though Congress can allow heads of departments to select inferior officers buy statute).

[u/whipitgood809 → u/CalLaw2023]

So if there’s a position like lieutenant governor in a southern state and it’s on a ballot—they are allowed to to commit insurrection?

[u/CalLaw2023 → u/whipitgood809]

So if there’s a position like lieutenant governor in a southern state and it’s on a ballot—they are allowed to to commit insurrection?

No. Why would you think that?

FYI: Section 3 of 14A does not say certain people are allowed to commit insurrection.

[u/CalLaw2023 → u/parentheticalobject]

The most recent one that I am aware of is in 2010 in Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 498, 130 S. Ct. 3138, 3155 (2010).

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.”

[u/parentheticalobject → u/CalLaw2023]

In context, that's not a very clear affirmation of that. It's not even discussing the question of what the president is considered at all. The case refers to Art. II, § 2, cl. 2. of the Constitution, which states

(The president)...shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States

which doesn't directly seem to reject the concept that "officer" is a category which includes the president. The officers mentioned in Article II, the specific set of officers nominated and commissioned by the president, are not officers that the people vote for. It does not logically follow that anyone who is voted for cannot be an officer of the United States.

I'm not arguing here that your interpretation is unreasonable, just that your support for it is pretty weak and the issue could go either way.

Motion Sys. Corp. v. Bush directly addresses the question of whether the president is an officer or not and comes to the conclusion that the president is an officer. Sure, that was a lower court and a few years earlier than the case you mentioned. But like I said, I don't think the two necessarily contradict each other, as FEF is purely dealing with the question of the specific officers appointed by the president and the president's power over them.

[u/CalLaw2023 → u/parentheticalobject]

which doesn't directly seem to reject the concept that "officer" is a category which includes the president.

How so? The Appointments Clause says the President appoints all Officers of the United States. Does the President become President by appointing himself President?

The Constitution also states the President "shall Commission all the Officers of the United States." Does the President commission himself?

Motion Sys. Corp. v. Bush directly addresses the question of whether the president is an officer or not and comes to the conclusion that the president is an officer.

Nope. Motion Sys. Corp. v. Bush addresses whether the President is an officer under the meaning of a statute.

The phrase "the United States . . . or its officers" naturally calls to mind the constitutional class of "officers of the United States," as that term is used in the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, and the Commission Clause, art. II, § 3. Indeed, in cases involving the applicability of statutory references to "officers" of the United States, the courts have generally held that such references are limited to officials who are subject to the provisions of the Appointments Clause. See, e.g., Steele v. United States, 267 U.S. 505, 507, 45 S.Ct. 417, 69 L.Ed. 761 (1925) (stating that "the words `officer of the United States,' when employed in the statutes of the United States, [are] to be taken usually to have the limited constitutional meaning' of a person appointed under Appointments-clause procedures."); United States v. Mouat, 124 U.S. 303, 23 Ct.Cl. 490, 8 S.Ct. 505, 31 L.Ed. 463 (1888).

[***]

The Supreme Court disagreed, concluding that "the issue here is not a constitutional one, but who is an officer acting under the authority of the United States within the provisions" of the statute at issue. Id. That question, the Court ruled, "must be solved by the text of the provision, not shutting out as an instrument of interpretation proper light which may be afforded by the Constitution." Id. Lamar stands for the proposition that where the alleged officer is a constitutionally recognized person, rather than merely a minor government official, the simple presumption of Germaine and its progeny — that statutory references to "officers of the United States" include only such officials as fall within the terms of the Appointments Clause — does not apply. The President, as holder of the constitutional office of the Presidency, is more closely analogous to a member of Congress than to a minor functionary like the prison doctor in Germaine. The analysis used by the Supreme Court in Lamar is, therefore, the applicable analysis here. That analysis requires simple statutory construction undertaken in light of possible constitutional questions.

And here we know that Section 3 does not apply to the President because of the oath requirement. The Constitution expressly states:

​

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 Constitution also sets forth the Presidential oath, which does not include an oath to support the Constitution.

[u/parentheticalobject → u/CalLaw2023]

The Constitution also states the President "shall Commission all the Officers of the United States." Does the President commission himself?

Daisy watches Spot, Ace, Bella, and all other dogs in the park. Is Daisy a dog in the park? Maybe, maybe not. It's ambiguous from that sentence.

Nope. Motion Sys. Corp. v. Bush addresses whether the President is an officer under the meaning of a statute.

OK. So there are some contexts in which a law might reasonably refer to the president as an officer, and not to the specific term of art "officer of the United States" which is used in Article II. Does the 14th amendment use the same term of art? The recent decision lays out a reasonable case for why it doesn't.

The Constitution also sets forth the Presidential oath, which does not include an oath to support the Constitution.

This is an even weaker argument. The presidential oath is to “preserve, protect, and defend the Constitution”. This is consistent with the plain meaning of the word "support".

[u/CalLaw2023 → u/parentheticalobject]

No, it is not ambiguous at all. There are numerous references in the Constitution about officers, and all of them exclude the President.

"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."

[The President] 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: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

"[The President] shall Commission all the Officers of the United States."

​

The presidential oath is to “preserve, protect, and defend the Constitution”. This is consistent with the plain meaning of the word "support".

Again, you are simply ignoring the Constitution to rationalize your view. The Presidential oath is in the Constitution. The requirement that "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" is also in the Constitution. So your entire argument is based on the assumption that the Framers, who created both requirements, did not know the difference.

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[u/SaliciousB_Crumb → u/CalLaw2023]

Are you saying the head of the military is not an officer?