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.
