[This post is co-authored with Professor Seth Barrett Tillman].
On December 6, the Colorado Supreme Court heard oral argument in Griswold v. Anderson. In this case, a number of Colorado voters asked the Court to order the Colorado Secretary of State to remove Trump from the primary ballot. The trial court adopted our intellectual position: that the President is not an "Officer of the United States," and therefore is not subject to Section 3 of the Fourteenth Amendment. We did not file an amicus brief with the trial court. The trial court's decision was appealed directly to the Colorado Supreme Court, and we did file an amicus brief before that court. Our brief argued that Section 3 requires federal enforcement legislation, and that the President is not an "Officer of the United States" as that phrase is used in the Constitution of 1788 and Section 3.
The arguments stretched more than two hours, perhaps as much as 1/3 of that time was devoted to the officer issue. The justices asked both sides probing questions, and seemed to understand the nuances of the textual arguments. We recognize that some well-known professors insist that this argument is frivolous and not even worth discussing. Indeed, at the Federalist Society National Lawyers Convention a few weeks ago, Judge Michael McConnell predicted that judges would not accept this argument. The Colorado Trial Court ruled exactly one week after McConnell's remarks.
