Season 3, Episode 38 (Show 142): An Officer and a President

September 13, 2023

Does Section 3 apply to not only Trump, but to any President?  What is going on in Wisconsin, where a duly elected Justice may be strangely impeached without sitting for a case?  And Justice Alito is back in the news.

CLE credit is available by visiting podcast.njsba.com after listening.

Two recent major podcast themes – section 3 of the fourteenth amendment, and judicial ethics – echoed through the news this past week.  Wisconsin legislators seek to impeach a new state Supreme Court Justice before she even sits for a case; and in Washington, Justice Alito is asked to recuse himself because of an interview he gave. Meanwhile, Section 3 is addressed by a former US Attorney General, who says it is inapplicable to the President for reasons that may seem counterintuitive, even strange.  We analyze the claims as well as what lies behind them in our constitutional system.

CLE credit is available by visiting podcast.njsba.com after listening.

Show Notes:

Constitutional Redundancies and Clarifying Clauses - Akhil Reed Amar

The “Seegers Lecture,” delivered by Professor Amar and subsequently published in the Valparaiso Law Review in 1998, discussing the notion of redundancy and supposed superfluity in the Constitution.

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Why the Incompatibility Clause Applies to the Office of the President - Sai Prakash

A 2009 article in the Duke Journal of Constitutional Law that addresses Mukasey’s argument in a somewhat different but clearly relevant and “heads 0n” context.

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Opinion in DC and Maryland v. Trump

Judge Messitte offers a harsh critique of the argument that the President is somehow not an Officer of the United States, beginning on page 10 of this opinion.

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Congressional Globe excerpt from 1866 on Officers

A discussion on the floor of Congress that makes clear the Congressional understanding of who was an “Officer of the United States” at the time the 14th Amendment was drafted, passed, and ratified – in 1866.

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Was Trump ‘an Officer of the United States’? - WSJ

The op-ed in the Wall Street Journal which asks the question that, hopefully, this podcast puts to rest.

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United States v. Mouat (1888)

Case cited by former Attorney General Mukasey which, he asserts, provides evidence to the effect that the President, being elected, is not an officer.  Professor Amar begs to differ.

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