[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, the President 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.
In an earlier post, we analyzed several aspects of oral argument with regard to whether the president is covered by Section 3—that is, "Is the president an 'Officer of the United States'?" as that phrase is used in Section 3's triggering or jurisdictional clause. But we did not discuss the disqualification element of Section 3. Those who are disqualified by Section 3 cannot hold certain positions: "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State." Is the presidency an "Office . . . under the United States" for purposes of Section 3's disqualification clause? Much to the consternation of our critics, we have not taken a firm position on this question. We have explained our reasoning in two articles now, but the critics are still unsatisfied. So be it. And this position is not new. We explained in a recent amicus brief from Michigan that "Since 2011, [Tillman] has expressly eschewed opining on the scope of Section 3's 'Office . . . under the United States'-language." And we don't plan to do so in this post.
