On Friday, January 5, the Supreme Court granted certiorari in Trump v. Griswold, the Section 3 case from Colorado. Today, my co-counsel and I filed an amicus brief on behalf of Professor Seth Barrett Tillman in support of the Petitioner. (The Court set January 18 as the deadline for amicus briefs, but we filed early.)
Here is the summary of the argument:
This case turns on two threshold questions: "Can States enforce Section 3 in the absence of federal enforcement legislation?" and "Is the President an 'Officer of the United States'?" Both of these questions were settled long ago. In Griffin's Case, Chief Justice Chase recognized that Section 3 of the Fourteenth Amendment required federal enforcement legislation. And a historical tradition stretching back to the Early Republic establishes that "Officers of the United States," as used in the Constitution, are appointed, and not elected. Yet, this settled tradition was unsettled in the wake of January 6, 2021. The Colorado Supreme Court discarded Griffin's Case and ignored all textual evidence that the President is not an "Officer of the United States."
This Court should reverse on both grounds. First, Griffin's Case settled the meaning of Section 3, is consistent with the longstanding sword-shield dichotomy in federal courts' jurisprudence, and reflects a core premise of reconstruction: Congress, and not the distrusted States, was empowered to enforce Section 3. Second, the four provisions of the Constitution of 1788 that use the phrase "Officers of the United States" do not refer to the President. And the Framers of Section 3 used that older, extant, limited language, in particular the Oaths Clause, and in doing so carried forward the meaning of "Officers of the United States" from that "old soil." In 1788, 1868, and today, "Officer of the United States" in the Constitution extends exclusively to appointed positions and not to elected positions.
A ruling on the first ground would immediately halt the litigation in Colorado and other States. A ruling on the second ground would authoritatively resolve the Section 3 case against Petitioner in the leadup to January 6, 2025.
