The oral discussion today in Trump vs. Anderson strongly suggests a Trump victory on the foundations heroically advanced by Josh Blackman and Seth Barrett Tillman. Many congratulations to both of them for the long and fruitful campaign they have undertaken. The Court will likely overrule the Colorado Supreme Court based on The Griffin casethe absence of congressional legislation implementing Section 3, and the prudential and pragmatic arguments made in Section 3 of the Note signed by Attorneys General Edwin Meese III, Michael B. Mukasey, and William P. Barr, as well as Gary Lawson and myself.
Justices Ketanji Brown Jackson and Neil Gorsuch made a valiant but unsuccessful attempt to get Trump’s lawyer to address the other plausible off-track for the Supreme Court in this case, namely the argument that Section 3 does not apply to the President of the United States. They offered definitions of the phrase “officer of the United States” and the word “office” and the word “official,” but they never forced Trump’s terrible lawyer to say anything about the meaning of the phrase.”office *** Under the United States“, which language appears in exactly that wording both in Section 3 of the Fourteenth Amendment and in the Incompatibility Clause.
If the presidency is a”office *** under the United States” which covers Donald Trump under Section 3 of the Fourteenth Amendment, then it must also be a “Office under the United States“for purposes of the incompatibility clause, which prohibits members of Congress from holding any”Office under the United States.“This would mean that the Presidential Succession Act of 1947 is unconstitutional because it allows the speaker of the House of Representatives or the president pro tempore of the Senate to serve simultaneously as a member of both houses and to hold the presidency in the absence of both a President and a Vice President, whose Presidency is erroneously described as “Office under the United States”.
The Founding Fathers included legislative officials in the line of succession to the President, in 1792, in the Second Congress, in which many of the Constitution’s legislators participated. President George Washington signed the Presidential Succession Act of 1792 into law, ignoring a complaint by Congressman James Madison that legislative officials could not be placed in the line of succession to the presidency because doing so would violate the incompatibility clause. President Washington and the framers of the second Congress did not think that the Presidency was a “Office under the United States” for the purposes of the incompatibility clause. This constitutes dispositive evidence that the Presidency is also not a “office *** under the United States“for purposes of Section 3 of the Fourteenth Amendment.