[This post is co-authored with Professor Seth Barrett Tillman]
Since the outset of the Section 3 litigation, those seeking to disqualify Trump from the ballot have made two primary arguments concerning the Appointments Clause. First, they argued that whatever the phrase "Officers of the United States" meant in the Appointments Clause, it had a different meaning in Section 3. Second, they acknowledged that the President obviously does not appoint himself, but countered that the Appointments Clause does not define who are the "Officers of the United States." In the lower courts, the Respondents never attempted to discuss whether there are some "Officers of the United States" who are not referenced in the Appointments Clause. Indeed, we saw no need to address this point in our amicus brief, filed on January 9, 2024.
On appeal to the Supreme Court, the Colorado voters in Trump v. Anderson have pivoted to a new strategy. They now argue that the President, Vice President, Speaker of the House, and Senate President Pro Tempore are all appointed "Officers of the United States." Resp. Br. at 40 ("The Constitution 'otherwise provide[s]' for the 'appointment' of the President and Vice President by the electoral college, and the Speaker of the House and President pro tempore of the Senate by Congress.").
