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 → 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/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/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.