The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Blackman & Tillman, On The Wall
After the Denver trial court held that the President was not an "Officer of the United States," I observed that the Blackman-Tillman position on Section 3 had moved from "off the wall" to "on the wall."
If there is a wall in the conservative movement, it is Fox News. Over the past two days, our work was cited and discussed in some depth on two Fox News programs.
And if there is ever a wall in the mainstream media, it is the New York Times. In the past two days, our work was cited in three articles.
Other scholars, notably Josh Blackman of South Texas College of Law Houston and Seth Barrett Tillman of Maynooth University in Ireland, say that Section 3 does not cover Mr. Trump. There is, they wrote, "substantial evidence that the president is not an 'officer of the United States' for purposes of Section 3."
In 2021, two conservative legal scholars, Josh Blackman of the South Texas College of Law Houston and Seth Barrett Tillman of the National University of Ireland, Maynooth, published a law review article about the clause arguing on textualist and originalist grounds that a president does not count as an officer of the United States. Among other issues, they focused on language about "officers" in the original Constitution as ratified in 1788 — including language about oaths that can be read as distinguishing appointed executive branch officers from presidents, who are elected.
Others have argued the opposite, with the law professors Josh Blackman and Seth Barrett Tillman saying in a recent draft paper that they saw "no sound basis" for Mr. Baude's and Mr. Paulsen's conclusions.
We are grateful to the NYU Journal of Law & Liberty for publishing our article in late 2021. It's impossible to know in advance what pieces of scholarship will ever be relevant. Our article has been getting some attention of late.
There is much to say about what happened in Colorado. In due time. For now, I gave interviews on several radio stations (KPCC in Los Angeles, KOA in Denver, and KFI in Los Angeles.)
