[This post is co-authored with Professor Seth Barrett Tillman]
On Monday, February 19, 2024, Professor John Mikhail wrote a post on Balkinization titled, A Reality Check on "Officer of the United States" at the Founding. His post begins:
The Supreme Court seems poised to reverse Colorado's decision to exclude Donald Trump from its Republican presidential primary ballot on grounds other than that Trump did not take the right kind of oath to support the Constitution. Nevertheless, one or more of the Justices might still be inclined to agree with Trump that the President is not an "officer of the United States" within the meaning of Section Three of the Fourteenth Amendment. Trump prioritized this argument in his briefs to the Court, drawing primarily on the scholarship of Seth Barrett Tillman and his co-author, Josh Blackman. While I have long admired the detailed work that Professors Tillman and Blackman have done on this topic, I remain unconvinced by their core argument that this term refers only to appointed officials, not elected officials. In this post, I outline some of the reasons why, drawing upon research that I have pursued for many years on the Officers of the United States to which the Necessary and Proper Clause refers. Much of the evidence I discuss here has been ignored or overlooked in the existing scholarship on Section Three, and most of it does not appear in any of the briefs in Trump v. Anderson. (emphasis added).
