Below is my post in support of a Trump disqualification decision by the U.S. Supreme Court. But I would like to start with two points.
(1) What does it mean to be an officer of the U.S., or any other institution?
Here is my simple practical definition: an officer of an institution is whoever commits the institution by his or her decisions, thus rendering the institution accountable (for the decisions).
An immigration officer working in a federal office building somewhere — near Dallas, Texas, I believe — granted me a green card. Whatever that officer personally thought, the decision was official and thus mattered.
Contrast that officer of the United States with a member of Congress. A lawmaker is not an officer of the U.S. as he or she does not make decisions for the government, but participate in making the decisions. Law makers are not decision makers. He or she is generally not authorized to speak in the name of the government, while scores of thousands of people who issue however minute decisions (including internal ones) are. Indeed, Representatives speak — conceptually, not officially—in the name of the people, Senators— of the States. It should be clear then why the 14.3th Amendment adds an explicit reference to “Senator or Representative in Congress, or elector of President and Vice-President.”
It obvious that no individual in official capacity has more authority than the President to speak in the name of the U.S.
It is not surprising that the confusion about the meaning of “officer” is triggered by Trump. Trump consistently and singularly has failed to distinguish between acting in official capacity, and in personal capacity.
(2) Don’t use the term “disenfranchise”
The Trump disqualification issue is not a matter of disenfranchisement. It is misleading and conceptually misguided to frame the matter with such charged terminology. It is unfortunate that The New York Times Carelessly used the term in its front page reporting.
Trump Should Be Disqualified
I was impressed by the reasoned clarity of the Colorado Supreme Court decision executing the 14th Amendment but not surprised; I prefer to expect institutions make the right call. I am happy that was the case here.
Of course, I am aware of the political calculus informing predictions concerning the decision the US Supreme Court will deliver on the question, but expectations are not predictions. My expectation is that the Supreme Court will make the right decision here just as the Colorado court did. As for my predictions, I will keep them private.
The US Supreme Court is surely not thrilled to have this hot potato thrown at its doors, but it is a mistake to describe the question as a difficult one. It is not a difficult question, not constitutionally, not legally, and not ethically. An unpleasant problem to have to deal with, to be sure, but its solution is rather straightforward.
The Colorado Supreme Court has spoken well and clearly; there is not much to add. But here are several points that I think have not been mentioned in the decision:
First, the U.S. constitution came into effect by George Washington’s taking the constitutionally prescribed presidential oath in front of Federal Hall on Wall Street in New York on April 30, 1789. That was the action — a public statement of personal commitment —that started the roaring engine of what will become the mighty institution of the federal government. The very first (federal) law that Congress attended to while convening at federal Hall, and that Washington as president signed, was the Oath Act.
Second, if anyone still harbors doubts that the president is among the officers of the United States, consult the Federalist Paper 69 (by Hamilton) that ends thus (the Colorado decision mentions this almost in passing):
The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable. The one would have a QUALIFIED negative upon the acts of the legislative body; the other has an ABSOLUTE negative. The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of DECLARING war, and of RAISING and REGULATING fleets and armies by his own authority. The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the SOLE POSSESSOR of the power of making treaties. The one would have a like concurrent authority in appointing to offices; the other is the sole author of all appointments. The one can confer no privileges whatever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies. The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several respects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin. The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church! What answer shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism.
Third, each of the Justices of the Supreme Court has publicly committed to
support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
It is evident what the justices are accountable for, and what should guide their decisions.
Pundits get the political backdrop wrong
It is a simple problem legally, but politically is where complications arise.
1. A Trump disqualification would serve the Republican Party. Trump is very strong among the base, less so in the general Republican leaning or considering public. If the court takes Trump out of the game, many in the party will take a breath of relief, if only in private. Nikky Haley (or, say, Ron Desantis) is a greater threat to the Democrats than Trump. The Republicans enjoy more flexibility at this moment which would benefit them if the court alters the terrain during the countdown to November.
2. Fears of a public outcry after a disqualification decision seem to me overblown. Trump is tolerated but not particularly loved among the wider Republican sympathetic electorate, as polls have repeatedly shown. The strong base will get over the blow sooner than anyone expects (even if with some expressions of discontent—so what?).
3. Political calculations aside: a Trump disqualification is the decision that would support and defend the Constitution.