Category: Law

Last month I posted a series on the elements I saw as necessary to be established by those who seek to have Donald Trump declared to be disqualified from again serving as president under section 3 of the Fourteenth Amendment. This series was published in light of the pending petition seeking to exclude Trump from the Colorado primary ballot. (docket entries here)

My second element was whether Trump took an oath to “support” the Constitution given that the only oath of office he ever took was the presidential oath which requires one to “preserve, protect, and defend” but not “support” the Constitution. Recently I was told that I was one of the first, if not the first, to make this particular argument. That was rather surprising, but I have not been able to find it made earlier. Whether I am first or not, however, President Trump used it as part of a motion to dismiss the Colorado petition. (Other than timing, I have no evidence that Trump’s attorneys got the argument from me.)

So far, the petitioners do not seem to have responded to Trump’s invocation of that argument and it was not part of the judge’s Omnibus Ruling on Pending Dispositive Motions which was released last Friday.

Not every bad policy is unconstitutional. The case in point is the funding mechanism for the Bureau of Consumer Financial Protection established by the Dodd–Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203), which prefers to call itself the Consumer Financial Protection Bureau (“CFPB“). When the 111th Congress created the agency, it tried to entrench its policy views against the possibility that a later (Republican) congressional majority or president would disagree with them. For example, as originally conceived, the agency is headed by a single director, removable by the President only for cause. Thus, when Donald Trump became President, he was not able to replace the Obama-appointed incumbent.¹ This feature of the agency was declared unconstitutional in Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. ____ (2020).

The CFPB is not funded through the annual (and usually dysfunctional) budget process. It gets to requisition the funding it wants (up to a limit that it has never actually reached) from the Federal Reserve. Opponents of one set of its regulations, those relating to payday lending, used the funding mechanism as one of the bases for a challenge to the regulations. CFPB v. Consumer Financial Services Assn. (22-448).²

One part of Article I, section 9, of the U.S. Constitution, called the Appropriation Clause, provides: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .” The argument is that because the CFPB is not subject to the annual budget process like everyone else, its ability to call for money from the Fed is unconstitutional and this means it cannot validly promulgate the payday lending rules.

There’s really a lot wrong with this argument, starting with its disconnect from the actual text of the Appropriations Clause. There is no requirement of any annual process. Indeed, the only constitutional durational limit on an appropriation is the two-year maximum for an appropriation for the Army contained in Article I, section 8. Not every other part of the federal government goes hat in hand to Congress every year. These were two of the issues discussed at length at the Supreme Court oral argument on October 3, 2023 (audio | transcript). They didn’t even have time to get to the question of how the possible issue of the funding mechanism means that one particular set of regulations that it adopted is invalid.³

I don’t see the votes to sustain the Court of Appeals’ decision, so expect the CFPB to survive.

But not everything that is constitutional is good policy. This case generated a lot of amicus activity (non-parties who obtain permission to file briefs in the case), one of whom was former acting director Mulvaney himself. His brief, although somewhat tangential to the discrete issues to be decided, was replete with well-taken criticisms of the agency.

Jay Bohn

October 12, 2023

1. In 2017 the first CFPB director, Richard Cordray, resigned as director in order to run for governor of Ohio. Immediately before leaving Cordray appointed CFPB chief counsel Leandra English to the vacant post of executive director with the expectation that she would continue as acting director. President Trump appointed his OMB director, Mick Mulvaney, acting director under different legislation. English was not successful in her subsequent lawsuit to claim the job. ↩︎
2. The challengers actually won on this issue in the Court of Appeals, so the CFPB is the petitioner in the Supreme Court. ↩︎
3. For more detail on the argument, if you don’t have time to read or listen to it yourself, read Amy Howe, Court divided over funding mechanism for consumer watchdog, SCOTUSblog (Oct. 3, 2023, 5:33 PM), https://www.scotusblog.com/2023/10/court-divided-over-funding-mechanism-for-consumer-watchdog/ ↩︎

By now we’re all a bit weary of this subject, but it could be quite important.

Since I began posting about the case in Colorado, another has been filed in Minnesota. It’s good to have these petitions filed in court rather than relying on individual election officials to make the initial decision.

The judge in Colorado plans to have a decision by the end of October to leave as much time as possible for appeals.

These cases have been filed in state court because there is a real question about whether anyone has “standing” to assert the claim in federal court. I understand why, but it is nonsensical that because the question is so important no one may have a sufficient personal stake to bring a claim for disqualification in federal court.

Sorry President Trump. The petitioners in these cases may be legally wrong (indeed, I do not believe that they are correct), but this is a valid question that should be resolved; it is not election interference.

There are those who believe that the decision should be made by the voters. I see their point, but the same can be said about any qualification for office. While you’re at it, repeal all term limits, which also interfere with voters’ freedom of choice.

Jay Bohn

September 28, 2023

The most interesting question, and the one that is most intensely factual, is whether Donald Trump “engaged” in what I agree was an insurrection on January 6. As with every other decision related to this issue, it cannot be based upon whether one wants or doesn’t want Trump to be disqualified from future office.

No one has found a smoking gun, clear evidence that President Trump planned with others for the mob to attack the Capitol. The Anderson petition argues that it would not have happened but for Trump’s “false claims of election fraud, coercive tactics, inflammatory rhetoric, mob mobilization, promotion of political violence, instructions to march on the Capitol, and decision to pour fuel on the fire rather than tell the mob to disperse.” Perhaps so. Perhaps, even, he is responsible in some (serious) sense, certainly his actions or inactions were a negligent (or worse) dereliction of duty, but the case is far from clear that this conduct means that President Trump “engaged” in the insurrection.¹

I am not suggesting that President Trump had to enter the Capitol or otherwise personally commit violence. I only say that based upon what facts I know (which are limited to what has been reported by the professional media), it is not obvious that President Trump intended an insurrection.

But our legal system is often called to make judgments about what people intended. Ultimately one or more courts is going to have to hear evidence and make a factual determination. President Trump should be compelled to testify about the what and why of his conduct.

Jay Bohn

September 21, 2023

1. Let me be clear. While President Trump had a duty to “See that the laws are faithfully executed” and to “preserve, protect, and defend the Constitution,” and these duties should have led him to take swift and decisive action to protect Congress from invasion by hostile forces. Trump failed miserably and his refusal to take action was, in my opinion, an impeachable offense. (However, as I have written before, the historical case that the Senate retained jurisdiction to try the impeachment after Trump’s term expired is weak.) ↩︎

Getting beyond what some may see as overly technical conclusions as to whether the President is an “officer” of the United States and whether Donald Trump ever took an oath to “support” the Constitution, we get to the first of the meatier questions, was the attack on the Capitol an “insurrection or rebellion” as those terms are used in section 3 of the Fourteenth Amendment?

The Anderson petition ‘s position seems to be to rely upon various subsequent statements by different parts of the government that the events of January 6 were an insurrection. That’s too conclusory for me. Nor is it helpful to cite a modern dictionary definition.

The original Constitution uses that term “insurrection” exactly once, in Article I, section 8, where Congress is given the power to “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” The only case to determine that one of the participants in the January 6 attack on the Capitol engaged in insurrection, New Mexico v. Griffin (decided just over a year ago), defined an insurrection as “an (1) assemblage of persons, (2) acting to prevent the execution of one or more federal laws, (3) for a public purpose, (4) through the use of violence, force, or intimidation by numbers.” The court cited the trial transcript as well as sources roughly contemporary to the adoption of the Fourteenth Amendment.

While I do not have ready access to the cited sources and that definition may not be perfect (I am concerned that it could bring in small stuff), the events of January 6, 2021, were not small stuff. An armed mob overwhelmed security, broke into the Capitol, and prevented Congress from doing its constitutional duty for several hours. People, including a police officer, died during these events. It was not a “mere” riot, or “just” a sit-in.

For these reasons, I am satisfied that the attack on the Capitol on January 6, 2021, was an “insurrection” and that, under section 3 of the Fourteenth Amendment, any person who had 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 and who engaged in that insurrection be a member of Congress, or presidential elector, or hold any office, civil or military, under the United States, or under any State.

In my last post on the elements of President Trump’s potential disqualification, I am going to consider whether he “engaged” in this insurrection.

Jay Bohn

September 18, 2023

The second of the elements I set forth in last week’s post about former President Donald Trump’s possible disqualification based upon Section 3 of the Fourteenth Amendment is the question of whether Trump took an oath to support the Constitution of the United States. Here again we face the unusual situation that the only time when he would have taken such an oath was when he was inaugurated as President on January 20, 2017, as he did not previously hold any public office that would have required an oath. But the oath he took that day does not promise to “support” the Constitution.

As I stated in my last post, Article VI requires an oath to “support” the Constitution be taken by “Senators and Representatives . . ., and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States.” Uniquely, the wording of the oath required to be taken upon assuming the presidency is specifically set forth in 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.” A new President swears to “preserve, protect and defend” the Constitution, not to “support” it.¹

The petition in Anderson v. Griswold, the Colorado case seeking to exclude Trump from the ballot, does not directly address this point. Paragraph 353 correctly references the wording of the oath that Trump was required to, and did, take, to “preserve, protect and defend” the Constitution, but paragraph 358 merely concludes that this oath was an “oath … to support the Constitution of the United States.”

As with the question of whether the President is an “Officer,” I do not believe that the authors of the Fourteenth Amendment affirmatively intended to immunize a President from potential disqualification, I just don’t think they were particularly worried about it or considered that the presidency would be the first public office a person would obtain.

Jay Bohn

September 14, 2023.

1. I am not aware that anyone has ever taken the position that the President must take an oath under Article VI in addition to the oath prescribed by Article II, and there is certainly no suggestion that President Trump actually did so. ↩︎

A few days ago I started what is going to be a multi-post thread in which I propose to discuss whether Section 3 of the Fourteenth Amendment disqualifies Donald Trump from being reelected as President of the United States due to his actions with respect to the January 6, 2021, attack on the Capitol.

The first “element” as it were of the case for Trump’s disqualification is whether the President is an officer of the United States. This is important because the disqualification only applies to persons “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.” Donald Trump, so far as I understand his biography, has only been President, so unless the President is “an officer of the United States,” he is not subject to disqualification.

The Constitution uses the term “officer” twelve times:

• Article I, §2, refers to the Speaker and other Officers of the House of Representatives;
• Article I, §3, refers to the “other Officers” of Senate (besides the Vice President of the United States who is its President);
• Article I, §8, mentions “Officer” twice; it refers to the Appointment of Officers of the Militia and, in the “Necessary and Proper” clause it mentions “Powers vested “Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof;”
• Article II, §1, uses “Officer” twice when referring to who would exercise the powers and duties of the President in “the Case of Removal, Death, Resignation or Inability, both of the President and Vice President;”
• Article II, §2, uses the term “Officer” three times: the President’s ability to require the written opinion “of the principal Officer in each of the executive Departments;” and the appointment of “Officers of the United States,” either “by and with the Advice and Consent of the Senate” or (for inferior Officers as authorized by Law by “the President alone, in the Courts of Law, or in the Heads of Departments.;”
• Article II, §3, provides that the President “shall Commission all the Officers of the United States;”
• Article II, §4, renders liable to removal upon Impeachment and Conviction the ” President, Vice President and all [not “all other”] civil Officers of the United States;” and, finally,
• Article VI requires an oath to “support” the Constitution be taken by “Senators and Representatives . . ., and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States.”

I submit that there is nothing in this language describes the President as an Officer and several provisions which suggest that he is not: neither he nor the Vice President is commissioned, the impeachment provision does not refer to “other” officers and the wording of the oath of office of the President (but not the Vice President) is specifically provided elsewhere.

The petition is Anderson v. Griswold, the case before a Colorado state court that seeks the declaration of disqualification, relies upon the position that because the presidency is an “Office,”¹ its holder must be an “Officer.” and an attorney general’s opinion contemporaneous with the adoption of the Fourteenth Amendment.

I will acknowledge that it at least seems counter-intuitive that a local dogcatcher who swore an oath (will little ceremony) to support the Constitution could be disqualified but the President is not. While I doubt that there was a policy reason for the difference, it may have been overlooked because Franklin Pierce, the only former President who took the side of the Confederacy, was already dead.²

At this point I am not convinced that Trump’s having taken an oath as President satisfies the first element as I have defined it. It will be interesting to see what other arguments are made, but I hope the desired end of disqualification does not lead to an unjustified conclusion on this point.

Jay Bohn

September 11, 2023

1. I’m not going to go through all the times that the Constitution uses the term “Office,” some exclusively referring to the Presidency, but I do agree that the Presidency is an “Office” of the United States, so any person who is disqualified cannot be President. ↩︎
2. While I do not think that Section 3 is limited to the Civil War, it was certainly written with that in mind. ↩︎