Does US federal law make a distinction between a federal office such as the presidency and a legislative seat such as those of Congress?

[StephenS]

Jurisdiction

US Federal Law

I have read that US law (much like, reportedly, British law before it) makes a distinction between a federal office such as the presidency and a legislative seat such as ones in Congress. That is to say, legislative seats are NOT regarded as offices.

For example, that distinction can be seen in the second part pf the Electors Clause in section 1 of article 2 of the Constitution ("no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector") where the position of "Senator or Representative" is being implicitly distinguished from "an Office of Trust or Profit".

However, I have been unable to find any federal court cases where this distinction has been made. Or at least the search engines I have tried tend to bring up a horde of unrelated items.

Does anyone know of which court cases, especially US Supreme Court ones, have dealt with, or at least touched on, this issue?

Thanks in advance.

 

[welkin]

Electors Clause in section 1 of article 2 of the Constitution ("no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector")

Simply put:

Article II includes only the instruction to each State to appoint, in whatever way it likes, as many electors as it has Senators and Representatives (except that the State may not appoint members of the Federal Government).

In Supreme Court case No. 19-465.

 

[Tax Counsel]

Does anyone know of which court cases, especially US Supreme Court ones, have dealt with, or at least touched on, this issue?

The roles of the President and that of members of Congress are, of course, very different. The Constitution itself makes that quite clear. Members of Congress are not "officers of the United States". Officers of the United States include members of the executive and judicial branch but not the legislative branch. Members of Congress are distinct from federal government officers in that they are not subject to impeachment as are the President, Vice President, other executive branch officials and Article III federal judges (members of the Supreme Court, and judges of inferior courts created by Congress that serve with life tenure) . For a discussion of who is an officer of the United States, a Stanford law review article delves into that very subject. A prepublication draft of this law review discussion is also hosted on the Supreme Court website. The author includes citation to various federal court cases, among other sources, in making her argument concerning who is an officer.

 

[StephenS]

The roles of the President and that of members of Congress are, of course, very different. The Constitution itself makes that quite clear. Members of Congress are not "officers of the United States". Officers of the United States include members of the executive and judicial branch but not the legislative branch.

That may well be so, but it is not at all clear that the Supreme Court itself understands the distinction. I say that because of a recent decision by that Court. That decision was Trump v. Anderson (2024) which dealt with disqualification under section 3 of the 14th Amendment.

In that decision the Court decided (p106) that because "the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 [of the 14th Amendment] against federal officeholders and candidates" it would reverse the decision of the Colorado Supreme Court in Anderson v. Griswold (2023).

Later on (p110) it went further: "We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency."

On the face of it that seems a clear enough decision. But here's the problem: section 3 of the 14th Amendment is one of those parts of the Constitution which distinguishes members of Congress from federal officers. To be specific, it begins: "No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States..."

There we see "a Senator or Representative in Congress" being distinguished from those who "hold any office, civil or military, under the United States".

So that begs an obvious question about that decision. In banning states from "enforcing Section 3 against federal officeholders and candidates", did that ruling apply ONLY to those holding federal office (and candidates for presidential elections), leaving the states STILL free to ban federal LEGISLATORS and candidates for the House and the Senate who run afoul of section 3?

Unfortunately, it is far from clear that that was what the Court had in mind because on p112 of its judgment it also states: "It would be incongruous to read this particular Amendment as granting the States the power—silently no less—to disqualify a candidate for federal office."

Notice that word "office".

It then goes on: "The only other plausible constitutional sources of such a delegation are the Elections and Electors Clauses, which authorize States to conduct and regulate congressional and Presidential elections, respectively."

If the Court was only talking about members of the executive and judicial branch but not the legislative branch then there would be no need to talk about the Elections Clause, which only deals with CONGRESSIONAL elections.

It then proceeds to repeat language used earlier on p106: "But there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates." That quote strongly suggests that it is conflating, presumably inadvertently, members of Congress (& maybe even presidential electors) with federal officers, especially under that term "federal officeholders".

Which brings me to that Stanford Law Review article you linked to.

For a discussion of who is an officer of the United States, a Stanford law review article delves into that very subject..

Thanks very much for that link. Unfortunately, that article does not appear to address the specific issue I raised (although it does have a footnote (#26) which references other papers which may; but I am still going through those; however, the one which may have the most relevance--Steven G. Calabresi's "The Political Question of Presidential Succession" from 1995--does not appear to be online save on JStor which I do not have access to).

Do you or anybody else know of any other sourcea on this issue?

Thanks in advance.

 

[Tax Counsel]

The Supreme Court did not discuss directly the state's ability to bar candidates for Congress under the 14th Amendment's insurrection provision because that was not the situation it before it to decide. Thus, the decision doesn't answer the question of whether states may bar any candidate seeking a seat in Congress because of the 14th Amendment. We will have to wait until a state bars a candidate from the ballot for a seat in Congress to hear if the Court creates the same rule that only Congress has that power. That's not unusual for the Court to do. Indeed, that is what the courts are supposed to do: resolve only the issue before them and not go beyond that to make decsions about fact patterns that are not before the Court.

The situation with members of Congress is a bit different than it is with the President and Vice President. Part of the Court's concern was that a state (Colorado in the case before it) barring a candidate from the ballot affects not just that state, but the other states as well. It was concerned about the chaos that might be created should there be inconsistent decisions and standards from state to state regarding who is banned from the ballot for those two nationwide offices. A state barring a candidate for a seat in Congress doesn't affect voters in any other state in electing the candidates of their choice.