H.R. 371: The President is an Officer of the United States

A central issue in Trump v. Anderson is whether the President is an officer of the United States and thereby covered by Section 3 of the 14th Amendment (“Section 3”). The Colorado Supreme Court addressed the “officer” question, finding that “(1) the Presidency is an ‘office, civil or military, under the United States’; (2) the President is an ‘officer of the United States’; and (3) the presidential oath set forth in Article II constitutes an oath ‘to support the Constitution of the United States.’” In the U.S. Supreme Court, numerous briefs by the parties and by amici curiae have expounded in detail on the topic.

Missing from all these court filings is a detailed examination of the legislative history of H.R. 371, which offers definitive confirmation that the President is an officer and that the presidency is an office within the meaning of Section 3.

The 39th Congress approved the 14th Amendment in 1866. Four years earlier, the 37th Congress had been considering H.R. 371, “An Act to prescribe an oath of office, and for other purposes.” As passed by the House of Representatives on June 4, 1862, H.R. 371 provided as follows:

That hereafter every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, shall, before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe the following oath or affirmation: [Text affirming no prior participation in hostilities against the government of the United States]. And any person who shall falsely take the said oath shall be guilty of perjury, and on conviction, in addition to the penalties now prescribed for that offence, shall be deprived of his office and rendered incapable forever after of holding any office or place under the United States.

When taken up by the Senate on June 13, 1862, H.R. 371, Senator Lyman Trumbull of Illinois, chairman of the Committee of the Judiciary introduced the bill. He expected “no objection to it.”

Willard Saulsbury, Senator from Delaware, replied to Senator Trumbull by expressing doubt about the constitutionality of the bill:

I shall make no objection to the passage of this bill; but I wish simply to suggest to the chairman of the Committee on the Judiciary for his consideration this fact: that for many officers, the Constitution prescribes the oath, and says what the oath shall be. Is it competent for the Congress of the United States to pass an act requiring an additional oath, and saying that an officer who takes the oath prescribed by the Constitution shall not exercise the functions of the office unless he takes such additional oath? That is the question I wish to suggest. I have no objection to Congress passing such an act; but to my mind the question is at least doubtful as to the power of Congress to say that a person who takes the oath prescribed as a qualification for his office shall not exercise its functions unless he takes an additional oath prescribed by Congress.

Senator Saulsbury continued by specifically referencing the office of the presidencyas being covered by H.R. 371:

Suppose at the next presidential election the present Chief Magistrate of the United States should be reelected; suppose, on the 4th of March, 1865, he presents himself in the east front of this Capitol, and the Chief Justice of the United States proceeds to administer to him the oath of office, and the President says, “the Constitution requires such a form of oath; I am willing to take that oath.” The Chief Justice replies that Congress has prescribed an additional oath, which he must take. Would he be the President of the United States elect or not; and would he not have the right to demand that he be permitted to exercise the functions of the office of the President of the United States by complying with the constitutional requirement and taking the oath prescribed in that instrument? The fact that this does not impose any obligation inconsistent with the oath in the Constitution of the United States, is not an answer to this objection. You say positively by this bill that the person shall not exercise the office unless he takes this additional oath; that is, you say, notwithstanding he complies with every requirement of the Constitution of the United States, still he shall not exercise an office which the Constitution of the United States says he shall.

Senator Garrett Davis of Kentucky agreed with Senator Saulsbury’s position concerning the presidency as an officer of the United States:

I have every disposition in the world to favor the passage of all proper and constitutional laws to secure the fidelity of the officers of the Government; but it seems to me the Senator from Delaware has suggested an objection to this bill that deserves serious consideration. I hold it to be an undoubted principle that the Congress of the United States can neither add to nor subtract from the qualifications prescribed in the Constitution for any office. The qualifications for a candidate for the Presidency and Vice Presidency are prescribed and established by the Constitution. There is no power on earth save the power that alters the Constitution and in the act of altering the Constitution, that can either add to those qualifications or take away from them. It is so with every other officer whose qualifications are fixed and established by the Constitution.

Senator Trumbull replied with the assertion that H.R. 371 did not cover the presidency:

I quite agree with the Senator from Kentucky that no law should he passed which is unconstitutional; and I do not think there is any force in the suggestion that objections taken to laws on account of their want of constitutionality should not be made because of their staleness; but I think the Senator from Kentucky has fallen into an error in his argument upon this bill; and I should be very glad to satisfy him, if I could, that such was the case. He will observe that the Constitution of the United States prescribes the form of the oath in a single case only, in regard to the President. The form of oath is given which the President of the United States shall take. This bill, if he will look at it carefully, does not apply to the President of the United States. It applies to persons elected or appointed ‘either in the civil, military, or naval departments of the public ser-vice.’ I apprehend that that would hardly embrace the Executive, the Chief Magistrate of the nation. Therefore, I will lay aside the suggestion which came from the Senator from Delaware, and any suggestion made by the Senator from Kentucky in regard to the President. I do not think he fairly comes within the purview of the act.

John S. Carlile, Senator from Virginia, objected to Senator Trumbull’s reasoning. The two senators engaged in the following dialogue:

Senator Carlile:  But the inquiry I desire to make of the Senator from Illinois is this: I understood him to say that this bill would not apply to the President of the United States. The bill reads, “that hereafter every person elected or appointed to any office of honor or profit under the Government of the United States, either in the civil, military, or naval department of the public service.” I take it for granted that the office of President is an elective office, and it is a civil office, and it is an office of honor and an office of profit, and it is an office under the Government of the United States.

Senator Trumbull: Is it an office in the civil, military, or naval department of the Government?

Senator Carlile. I think it is in the civil department. What department is it in if it is not?

Senator Trumbull: The executive is one by itself; it is one of the divisions of the Government.

Senator Carlile.  It is both civil and military.

Senator Trumbull. Then the bill does not apply to it, because it is in the alternative; it applies to persons “elected or appointed” to any office, “either in the civil, military, or naval department.”  

In other words, Senator Trumbull’s assertion was that the presidency was both a civil office and a military office of the government, and that HR 371 did not apply to offices with dual status such as the presidency.

Debate in the Senate resumed on June 23, 1862, with Senator Trumbull retreating from his prior support of H.R. 371 in its original form. He introduced a motion to amend H.R. 371 by excluding from the bill those offices “for whom the form of the oath is not prescribed by the Constitution.” Considering Senator Trumbull’s earlier statement that “the Constitution of the United States prescribes the form of the oath in a single case only, in regard to the President”, the proposed amendment had the effect of removing the presidency from the bill’s mandates.

For Senator Davis, Senator Trumbull’s proposed amendment did not go far enough since it removed only the presidency from the bill. Senator Davis introduced a motion to amend Senator Trumbull’s proposed amendment by adding the following language: ”and excepting the Vice President and Senators and Representatives in Congress.” Debate continued with the Senate ultimately approving Senator Trumbull’s amendment as amended by Senator Davis’ amendment.

H.R. 371 was sent back to the house where the Senate’s proposed amendments were not accepted. The bill went into conference with the House and Senate seeking to overcome their differences on the bill. The Senate’s proposed amendments for excluding offices from coverage were ultimately modified by the House to read “Excepting the President of the United States.” The Senate accepted the revised language and H.R. 371, as amended, was presented to the President for signature on July 2, 1862.

On July 3, 1862, the Senate recorded in its records that President Abraham Lincoln had signed H.R. 371 into law. The bill was recorded as “An Act to prescribe an Oath of Office, and for other Purposes”, ch. 128, 12 Stat. 502 (1862). The law states:

“That hereafter every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, military, or naval departments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, take and subscribe the following oath or affirmation: . . .” (emphasis added).

See also Ex parte Garland, 71 U.S. 333, 4 Wall. 333 (1867).

Recognizing that the presidency would have otherwise been covered by H.R. 371, exclusionary language was added to the law to avoid a conflict with Article II, Section 1 of the U.S. Constitution. However, Section 3 of the 14th Amendment contains no language excluding the President from coverage.

Section 3 applies to the office of the presidency and to the President of the United States.