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Monday, November 20, 2023

How Might Robert Jackson Look at Section Three?

This thought experiment comes to mind because I'm writing a book on his Youngstown opinion and because I'm involved in the Section Three litigation. The exercise is also worthwhile because Jackson would have been relatively uninterested in the textual and historical arguments that dominates the current discussion. He took a structural or pragmatic approach. So let's look at one Section Three issue from his perspective.

Everyone agrees that Section Three binds President Biden to some extent. That's because he swore an oath to support the Constitution many times as a Senator. Likewise, everyone agrees that all of Donald Trump's predecessors since 1868 were similarly bound. They all served in some elected, appointed, or military office requiring a constitutional oath prior to becoming President. Thus, to say that Section Three does not bind Donald Trump would treat him differently from all other post-1868 presidents. Everyone also agrees that Section Three binds all other officials who engage in insurrection against the Constitution after swearing an oath to support the Constitution. To say that Section Three does not bind Donald Trump would also treat him differently from all other insurrectionist officials.

Robert Jackson might ask: What reason is there that justifies giving Donald Trump special treatment? The answer is none. Now Congress can make an exception for anyone under its Section Three amnesty power. Congress does not need a reason. But courts do. They are not permitted to grant amnesty. 

Posted by Gerard Magliocca on November 20, 2023 at 09:21 AM | Permalink

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