Griswold v. Anderson: The Section 3 Case Before The Colorado Supreme Court

[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. 

The Justices raised many questions and issues: e.g., state election law, the political question doctrine, the meaning of "insurrection," and the interplay between the First Amendment and Section 3. But in this post, we will highlight some of the questions posed to both sides about the officer issue. We think these questions demonstrate why the officer-issue is, and always will be, one that requires careful legal judgment and cannot be dismissed out of hand. 

Who are the Officers of the United States?

The Constitution of 1788 uses the phrase "Officers of the United States" in four provisions: the Appointments Clause, the Impeachment Clause, the Commissions Clause, and the Oath Clause. Each of these provisions was discussed during the oral argument.

Justice Hood asked about the general Oath Clause in Article VI and the Presidential Oath Clause in Article II. The former provides, "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." The latter provides, "Before [the President] enter on the Execution of his Office, he shall take the following Oath or Affirmation: — "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'" Justice Hood inquired, "What about the use of 'officer of the United States' in Article Two and Article Six in a way that seems to be distinguished from the President." And Justice Márquez asked, "why doesn't Article Six refer to the President specifically, then?"

Justice Gabriel pointed to the Appointments Clause. He asked, "What do we do with the Free Enterprise Fund case where the Chief Justice said people don't vote for officers of the United States?"

Justice Hart suggested that it would make sense to "put together" the Oath Clause and the Commissions Clause. She observed that "nowhere in any of the references to Officer, does the Constitution list the president." Rather, Justice Hart asked, do these provisions "suggest that the President is not an officer because he's never listed as one, and he Commissions all of them." We believe that Justice Hart announced exactly the right approach: each clause cannot be read in a vacuum.

Later in the proceeding, Justice Gabriel asked, "what is the president an Officer of"? Of course, the President is not an officer of any state or of foreign country. Wouldn't it have to be the case that the President is an officer of the United States? David McKnight's influential treatise observed that "[i]t is obvious that . . . the President is not regarded as 'an officer of, or under, the United States,' but as one branch of 'the Government.'" In Mississippi v. Johnson (1866), the Supreme Court observed that "the President is the executive department." And in Trump v. Mazars (2020), the Supreme Court described the presidency in the same fashion: "The President is the only person who alone composes a branch of government." (All of these authorities are developed in our NYU Journal of Law & Liberty article.) At the Colorado Supreme Court's oral argument, Scott Gessler, Esq., the attorney for former-President Trump, gave a somewhat different answer—but one which is consistent with our (Blackman and Tillman's) publications. Gessler said the President is a constitutional officer. That is, "officers of the United States" include, by contrast, only statutory officers. And that is why elected apex federal officials, including the President, Vice President, Senators, and Representatives, are not "officers of the United States."

Does the Constitution refer to the President as an "Officer of the United States"?

Let's get the easy part out of the way. The Constitution refers to the Presidency as an "Office." From that text, some have inferred that the President is an "officer," and from the latter still others have inferred that the President is properly characterized as an "officer of the United States." If the Section 3 case were a football field, that argument might get you a few yards. 

By contrast, we think the inquiry should start with a differently. We think the more probing and textually sound question is: Does the Constitution refer to the President as an "Officer of the United States" and to the Presidency as an "Office . . . under the United States"? During oral argument, Justice Gabriel asked that exact question: "Can you cite me a provision in the Constitution where the presidency is defined as an 'officer of the United States' or an 'office under the United States'? Yes, it says, holds this 'office' repeatedly. . . . I'm not sure it says ever the President is an 'officer under or of the United States'." Justice Gabriel is correct. No such provision exists.

Jason Murray, counsel for the plaintiffs-appellants (the voters), pointed to the Incompatibility Clause. It provides: "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." And he drew two inferences from this provision. First, Murray explained, in the Incompatibility Clause, the phrase "Office under the United States" would "pretty clearly include the president." He added, "basic separation of powers principles" would "[t]ell us that the president can't be a sitting member of Congress." Second, Murray stated that the Incompatibility Clause "tells us that Senators and Representatives don't hold" an "Office under the United States," because it would be "contradictory to saying members of Congress hold an office."

This exchange was quite revealing. The first argument is premised on a flawed assumption: the Incompatibility Clause was not designed as a separation of powers provision. Rather, this Clause was modeled after a similar provision in English law that barred the monarch from rewarding/bribing members of parliament with appointments to offices under the crown. There was no tradition of the King appointing members to be King or to succeed the King. A similar provision existed in the Articles of Confederation which lacked any resemblance to a traditional three-branch separation of powers governmental structure. The Confederation's national government only had a unicameral legislature. Thus, it is a mistake to view the Incompatibility Clause as a modern-day separation of powers provision. (We cover this ground in Part IV of our series.) We do not suggest that a President could concurrently hold a senate seat. Rather, our point is that if the Constitution forbids that result, it is not the text of the Incompatibility Clause which is doing the work. In much the same way, the text of the Constitution does not prohibit the Vice President from presiding at his own impeachment trial, but other elements of the Constitution may perform that function.

Murray's second argument draws an inference from the words used in a single provision: if a person holding an "Office under the United States" cannot be a member of Congress, it stands to reason that a member of Congress's position is not an "Office under the United States." That same mode of reasoning supports our positions with regard to the provisions that use the phrase "Officers of the United States." For example, if under the Appointments Clause, the President appoints the "officers of the United States," then the President is not an "officer of the United States." If under the Commissions Clause, the President commissions "all the Officers of the United States," and he does not commission himself, then he is not an officer of the United States. Both of these two observations undermine the plaintiffs-appellants' reading of the Constitution.

Mr. Murray offered one other way to distinguish the President from members of Congress. He said that Members of Congress "vote as part of a collective body," so therefore [they] do not "exercise some kind of continuing position of authority." By contrast, Murray said, the "President as the Chief Executive Officer" apparently does exercise a continuing position of authority, and does not act collectively. We have no idea what this argument means. Members of Congress, like the President, serve fixed terms. And Murray offered no support for the position that service in a "collective body" has any bearing on whether a person is an officer. Judges of the Supreme Court vote as part of a collective body. They are officers. Who doubts this?

For more than a decade, those who disagree with our position have been forced to simply make stuff up. One of our favorites is that President Washington's inauguration was akin to a coronation, so there was no need for him to commission himself. The far simpler answer, then and now, is that the President is not an "Officer of the United States."

Bizarre Consequences?

Mr. Murray pointed to what he described as "bizarre" consequences for finding that the presidency is not an "Office . . . under the United States." First, he suggested that the presidency would not be subject to the Religious Test Clause, and the government could "require the president to be a Jehovah's Witness." This argument is plainly wrong, although it has been raised repeatedly in the last several years. The Religious Test Clause provides: "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." In our view, the president holds a "public Trust under the United States." Indeed, every elected apex federal official holds a "public trust under the United States." Murray had already argued that members of Congress did not hold an "office." If Mr. Murray were correct that members of Congress do not hold an "Office . . . under the United States," then representatives and senators would need to fit in the category of "public Trust" to fall within the scope of the Religious Test Clause's text. We think he would agree. And the same reasoning extends the scope of the Religious Test Clause to the presidency—the Religious Test Clause applies to the President because the President holds a "public trust" and not because the presidency is an "office."

Mr. Murray also pointed to the Foreign Emoluments Clause. It provides "And no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." If the presidency is not an "Office . . . under the United States," then the President "can go to a foreign prince and ask them for a title of nobility." Murray said "those results are just so counterintuitive to our constitutional structure." If members of Congress do not hold an "Office . . .under the United States," as Murray argued, then Representatives and Senators also would be exempt from the Foreign Emoluments Clause. Would that result also be "so counterintuitive to our constitutional structure"? (During the Foreign Emoluments Clause litigation, CREW—the Plaintiff in this case—argued that members of Congress did hold "Office . . .under the United States. We see a tension in CREW's positions, then and now.)

Scott Gessler, Trump's counsel responded on point: 

How could you possibly believe a president would not be part of the [Foreign] Emoluments Clause? Well, I would suggest you walk into Mount Vernon, and you will see above the fireplace a full-length portrait of King Louis . . . the XVI. That was given to George Washington, by the French government. And no one batted an eye, it was never viewed as a violation of the Emoluments Clause, because no one thought that it applied to George Washington, there's also the key to the Bastille that was given [to] him by a representative of the French government.

Throughout the entirety of the Foreign Emoluments Clause litigation, no one wanted to talk about George Washington. Judge Peter Messitte's since-vacated decision ignored Washington and the diplomatic gifts he received, as well as Jefferson and the gifts he received from foreign governments. In short, President Washington received, accepted, and kept valuable gifts from French diplomats and French government officials. He never asked for congressional consent to keep those gifts. And neither his contemporaries nor anyone else—until litigation based on the Foreign Emoluments Clause against former President Trump began—suggested that these gifts were in any way in violation of the Constitution. The simplest explanation for the fact that no one complained is that no one thought Washington had done anything wrong. He had done no wrong because the presidency is not an "office . . . under the United States," and so, Washington's conduct was not controlled by the Foreign Emoluments Clause which extends only to persons holding an "office . . . under the United States." The point is that Murray (as do many others) assume that their legal and historical intuitions are co-extensive with the meaning of the Constitution, and that contrary intuitions are "bizarre." But any such view is falsified by Washington's conduct in office. When one's intuitions are contradicted by prior authority, it is possible that we are right and that the prior authority was wrong. But it is also possible that prior authority was right and that we are wrong. Establishing who is right and who is wrong is an intellectual project, and one does not carry out that project merely by asserting the rightness of one's own intuitions. 

In any event, the Colorado Supreme Court did not seem interested to talk about the Foreign Emoluments Clause. Justice Hood responded, "we've got enough on our hands without emoluments, right." We agree. In any event, if the President is not an "Officer of the United States," then the case is over—there is no need to determine whether the presidency is also an "Office . . . under the United States" under the Constitution of 1788 or under Section 3 of the Fourteenth Amendment or under both. 

The Constitution of 1788 and the Constitution of 1868

So far, our discussion has focused on the Constitution of 1788. Justice Hood asked, "is it really all that illuminating when we're talking about 80 years difference" between 1788 and 1868. Justice Hood inquired further, "shouldn't we be looking to other sources given that amount of time?" Jason Murray, counsel for the voters, made similar points. He said, "I think it's hard to say that the public that was considering whether to ratify the 14th amendment would have been going back and trying to see whether there was any ambiguity in the Commissions Clause or the Impeachment clause, they would have been relying on popular understanding and that understanding was very clear at the time." In other words, the meaning of "Officer of the United States" in Section 3 would not have been understood to be based on the meaning of that same phrase in the Commissions and Impeachment Clauses. 

Yet, when Murray had to defend the proposition that members of Congress did not hold office, he immediately pivoted to the Constitution of 1788. The approach should be consistent. Either the "office"- and "officer"-language in the Constitution of 1788 informs the meaning of Section 3, or it does not. The challengers cannot have it both ways. As we wrote in our Texas Review of Law & Politics article, it is difficult to evade the "gravitational pull" of the Constitution of 1788.

Still, in our view, evidence from the period contemporaneous with the ratification of the Fourteenth Amendment provides further support for our position. The best evidence, always, is the text. Remember, before you get to tradition or history, you start with the text. A common thread in the questioning focused on a simple textual point: the Framers of Section 3 expressly listed members of Congress, but did not list the President. Again, the text provides, in part, "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, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States."

Justice Samour asked, "Doesn't it seem odd to list specifically 'Senator or Representative in Congress' and not specify President or Vice President in section three." The latter aren't expressly enumerated. Justice Samour asked further, "If it was so important that the President be included . . . why not spell it out? Why not include president and vice president . . . ? They spelled out Senator or Representative?"

Enforcement of the 13th and 14th Amendment

We focus on one colloquy which concerned enforcement of the Reconstruction Amendments. Justice Gabriel stated if Section 3 is not self-executing, then "then the Due Process Clause and Equal Protection Clause are [also] not self executing." He continued: "So Congress could nullify both of those by doing nothing." Justice Gabriel also pointed to the Thirteenth Amendment, which has the "same language" granting Congress enforcement authority. He said, "I don't think anyone would say that Congress needs to act to enforce the abolition of slavery."

Scott Gessler, counsel for Trump, cited the Tillman/Blackman amicus brief. We explained the issue there:

Griffin, the habeas applicant, sought to use Section 3 as a sword—i.e., offensively as a cause of action supporting affirmative relief, but he could not do so without enforcement legislation. By contrast, Davis sought to use Section 3 as a shield—i.e., as a defense in a criminal prosecution, and he could do so without enforcement legislation.

A ruling that Section 3 requires enforcement legislation would do absolutely nothing to the 13th or 14th Amendments. The 13th and 14th Amendment could always be used as defenses, absent any federal legislation. And 42 U.S.C. Section 1983, which is firmly established, is not going anywhere. As a general matter, Section 1983 is the legislation that permits enforcing constitutional rights offensively—as a sword or cause of action. 

***

We make a few final points. We have been in this game for some time, and have seen virtually every argument. Nothing raised in this litigation has surprised us. Indeed, the reaction to our position has become familiar. Those who reflexively scoff at our argument are relying on normative judgments about how government ought to be structured. Of course, the Incompatibility Clause bars the President from serving in Congress. Of course, the Foreign Emoluments Clause applies to the President. Of course, Section 3 disqualifies a person from the presidency. These of course arguments start with the conclusion and then work their way backwards. 

Yet, these arguments are in many cases inconsistent with the reason why various constitutional provisions were drafted; they run head-long into contrary historical practices; and, perhaps, most importantly, cannot be reconciled with what people who lived much closer to ratification said about the Constitution. Instead of working backwards, we work forward. We start with a theory: the Constitution's text adopts a global divide between appointed officers and elected officials. "Officer of the United States" and "Office . . . under the United States" refer to appointed positions—although the two categories are not precisely the same. By contrast, when the Constitution's text applies to elected officials, it does not rely on general "office"- and "officer"-language. To quote Justice Barrett in Brackeen v. Haaland, what is your theory to explain the "office"- and "officer"-language in the Constitution?