Think back to 2010. The Affordable Care Act was signed into law. Challenges were filed across the country. Each case presented a central question: could Congress mandate that people purchase health insurance? A vigorous debate formed. Some legal scholars, including my colleague Randy Barnett, argued that the federal mandate was beyond Congress's powers. It was unprecedented, they said. Other scholars argued that the mandate was squarely in Congress's powers, or alternatively, there was no mandate at all. Needless to say, the position that Barnett and others advanced was ridiculed at every step. His position was called crazy, stupid, frivolous, and worse.
But then something changed. A federal district court judge in Florida agreed with Barnett's argument. He wrote a careful decision laying out both sides, and ultimately concluding that the mandate was beyond Congress's powers. Around the same time, prominent conservatives adopted the rallying cry that the federal government can't make you buy health insurance, or for that matter, broccoli. To use Jack Balkin's framing, an argument that was "off the wall" became "on the wall." How it happened is complex. I discuss the history at length in my 2012 book, fittingly titled Unprecedented. I won't rehash all of the developments here.
Today, I feel a sense of deja vu. Or maybe it's nostalgia. Debates over Section 3 bring me back to the heady days of 2010. I, along with my colleague Seth Barrett Tillman, contend that the President is not an "Officer of the United States" for purposes of Section 3. And, as could be expected, critics call our position crazy, stupid, frivolous, and worse. President Trump's counsel adopted our position. And wouldn't you know it, a trial judge in Denver accepted our position! Her opinion closely tracked how we've presented our argument for years. The judge wrote a careful decision laying out both sides, and she ultimately concluded that the better argument is that Trump is not covered by Section 3's "Officer of the United States"-language. Unsurprisingly, critics still call our position crazy, stupid, frivolous, or worse. Well, they don't mention us by name. Like with the Foreign Emoluments Clause cases, Seth and I get the Voldemort treatment—we shall not be named, unless our position is rejected.
