The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy

Amicus Brief Filed in Trump v. Griswold On Behalf of Professor Seth Barrett Tillman

"By contrast, a holding that the President is not an 'Officer of the United States' would authoritatively resolve the Section 3 case against the Petitioner. In that event, it will be the people, and not judges, or state officials, or Congress, who will decide."

|

On Friday, January 5, the Supreme Court granted certiorari in Trump v. Griswold, the Section 3 case from Colorado. Today, my co-counsel and I filed an amicus brief on behalf of Professor Seth Barrett Tillman in support of the Petitioner. (The Court set January 18 as the deadline for amicus briefs, but we filed early.)

Here is the summary of the argument:

This case turns on two threshold questions: "Can States enforce Section 3 in the absence of federal enforcement legislation?" and "Is the President an 'Officer of the United States'?" Both of these questions were settled long ago. In Griffin's Case, Chief Justice Chase recognized that Section 3 of the Fourteenth Amendment required federal enforcement legislation. And a historical tradition stretching back to the Early Republic establishes that "Officers of the United States," as used in the Constitution, are appointed, and not elected. Yet, this settled tradition was unsettled in the wake of January 6, 2021. The Colorado Supreme Court discarded Griffin's Case and ignored all textual evidence that the President is not an "Officer of the United States."

This Court should reverse on both grounds. First, Griffin's Case settled the meaning of Section 3, is consistent with the longstanding sword-shield dichotomy in federal courts' jurisprudence, and reflects a core premise of reconstruction: Congress, and not the distrusted States, was empowered to enforce Section 3. Second, the four provisions of the Constitution of 1788 that use the phrase "Officers of the United States" do not refer to the President. And the Framers of Section 3 used that older, extant, limited language, in particular the Oaths Clause, and in doing so carried forward the meaning of "Officers of the United States" from that "old soil." In 1788, 1868, and today, "Officer of the United States" in the Constitution extends exclusively to appointed positions and not to elected positions.

A ruling on the first ground would immediately halt the litigation in Colorado and other States. A ruling on the second ground would authoritatively resolve the Section 3 case against Petitioner in the leadup to January 6, 2025.

I am grateful to my co-counsel: Robert Ray, R. Scott Reisch, Jessica L. Hays, and C. Thomas Ludden.

After the jump, I've included key excerpts from the brief.

I. Plaintiffs' Requested Relief is Barred by Griffin's Case (1869)

In Griffin's Case, 11 F. Cas. 7 (C.C.D. Va. 1869) (No. 5815), Chief Justice Chase held that Section 3 is not self-executing.[1] In other words, Chase held that Section 3 could only be put into effect on behalf of a private party seeking affirmative relief against the government, e.g., a party seeking habeas relief, if that relief was authorized by a federal statute. Under Griffin's Case, the relief sought by the Respondents is barred precisely because they are seeking affirmative relief against the government to enforce Section 3 without authorization from federal enforcement legislation.

This Court should follow Griffin's Case. This decision, and its progeny, settled the meaning of Section 3. Griffin's Case is consistent with the longstanding sword-shield dichotomy in federal courts' jurisprudence. And Griffin's Case upholds a core premise of Reconstruction: Congress, and not the distrusted States, was empowered to enforce Section 3.

[1] See Blackman & Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 350, 482–84 (forth. 2024), https://ssrn.com/abstract=4568771 (hereinafter "Blackman & Tillman").

….

II. In 1788, 1868, and today, "Officer of the United States" in the Constitution extends exclusively to appointed positions and not to elected positions

In this litigation, there is actually some consensus. All sides agree that the presidency is an office, and by implication, the President is an officer. All sides agree that the President is not an officer of any particular state, or of a foreign government, but is an officer of the United States government. All sides agree that the President is not somehow above the laws of the United States, but is under, and subject to, the laws of the United States. Finally, all sides agree that rank-and-file members of Congress are not officers of any stripe. This is where agreement ends.

The Respondents argue the President is obviously an officer, and an officer of the United States, and holds an office under the United States. The Respondents present their conclusion as the only rational reading of the Constitution. They argue that the contrary position renders the Constitution a "secret code." They warn about absurd consequences if the presidency is not an "Officer under the United States." They insist that the Framers never would have intended to exclude the President from Section 3. These arguments may sound plausible at first blush, but crumble on closer inspection.

First, there is nothing "secret" about Amicus's position. Amicus uses the same methodology employed in D.C. v. Heller, 554 U.S. 570 (2008). To understand the original meaning of "the right to keep and bear arms," Justice Scalia analyzed the "historical background" of that provision in its antecedent provision, the English Bill of Rights. Id. at 592–93. Likewise, the roots of "Office under the United States," are in the English and British legal tradition, where "Office under the Crown" referred only to appointed positions, and not to elected positions. The phrase "Office under the United States" was used in the Articles of Confederation and in the Constitution. Here, the Framers "employ[ed] a term of art obviously transplanted from another legal source, [and] it brings the old soil with it." Biden v. Nebraska, 143 S.Ct. 2355, 2379 (2023) (Barrett, J., concurring) (citations omitted). In the Constitution of 1788, the presidency was not an "Office under the United States."

However, the phrase "Officer of the United States" was not widely used in federal and state organic documents prior to 1788. Because there is no "historical background" of "Officer of the United States" in documents like the Articles of Confederation, Amicus analyzes how that phrase is used in the Appointments Clause, the Impeachment Clause, the Commissions Clause, and the Oaths Clause. Irrespective of how "Officer of the United States" may have been used outside organic documents, the Appointments Clause defined the scope of this phrase in the Constitution.

The text of these four provisions supports the conclusion that "Officers of the United States" refers to appointed positions in the Executive and Judicial Branches of the federal government. But this phrase does not extend to appointed positions in the Legislative Branch, like the Clerk of the House, because these positions are not appointed pursuant to the Appointments Clause. This textualist argument has been recognized by jurists for two centuries, including Chief Justice Marshall and Justice Story. There is no "secret code."

Second, Respondents argue that Amicus's position would lead to absurd consequences. For example, they argue that if the presidency is not an "Office under the United States," then the President could freely accept foreign gifts. As a threshold matter, Respondents have some explaining to do. Under their position, members of Congress do not hold an "Office under the United States," so Representatives and Senators would likewise be exempt from the Foreign Emoluments Clause.

Moreover, there is no potential parade of absurdities if the President is not an "Officer of the United States." Indeed, to date, the Respondents have not produced a record of anyone stating that the President is an "Officer of the United States" for purposes of Section 3. None. But in April 1868, while ratification of the Fourteenth Amendment remained ongoing, a Louisville newspaper, citing the Commissions and Impeachment Clauses, argued that the President was not an "Officer of the United States."

The Framers of Section 3 had no reason to think about a person who: (1) was elected as President; (2) but had never before taken any other constitutional oath; (3) then is alleged to have engaged in insurrection; and (4) then sought re-election. The "failure to appreciate the effect of certain provisions" does not support the invocation of the "absurdity doctrine." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 191 (2012). And Amicus's position easily clears the bar of objective reasonableness. See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2156–57 (2016). Finally, "[m]aking exceptions either to achieve greater equity or avoid absurdity offends the rule of law norm …." Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109, 168 (2010). This principle is especially apt in a case seeking to disqualify a presidential candidate from the ballot. The Respondents wield absurdity as a loose canon.

Third, Respondents ultimately abandon all principles of original public meaning, and turn back the jurisprudential clock to original intentions. Justice Scalia stated the proper rule: "What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended." Antonin Scalia, A Matter of Interpretation 38 (1997). Yet the Respondents are "forced to abandon the [constitutional] text and precedent altogether and appeal to assumptions and policy." See Bostock v. Clayton Cnty., Ga., 140 S.Ct. 1731, 1749 (2020). In effect, the Respondents "contend that few in [1868] would have expected [Section 3] to [not] apply to" the President. See id. Bostock emphatically rejected this purposivist jurisprudence:

But the limits of the drafters' imagination supply no reason to ignore the law's demands. When the express terms of a [text] give us one answer and extratextual considerations suggest another, it's no contest. Only the written word is the law ….

Id. at 1737.

Section 3 of the Fourteenth Amendment was a compromise. Early versions of Section 3 would have restricted the franchise of all former confederates, or restricted the ability of all former confederates to hold public office. But the most the 39th Congress could agree upon was to "exclude from certain offices a certain class of persons." Griffin's Case, 11 F. Cas. at 25 (emphases added). Therefore, the Framers reached to extant, limited language in the Oaths Clause, and in doing so carried forward that "old soil." Perhaps some expected Section 3 to cover a person who only took one oath as President, but that is not what the ratified text means.

In the Constitution, the President was not an "Officer of the United States" in 1788, in 1868, and today. That is enough to definitively resolve this action, and, by implication, all other Section 3 cases concerning the Petitioner. Finally, if the Court agrees with Amicus that the President is not an "Officer of the United States," then there is no need to opine on whether the presidency is an "Office under the United States," and the consequences that may result from such a decision.

….

CONCLUSION

If the Court holds that Section 3 is not self-executing, and requires federal enforcement legislation, the litigation in Colorado and in other state courts would come to a halt. But in Congress, an important date looms on the horizon: January 6, 2025. Can the joint session of Congress determine that electoral votes for a purportedly disqualified presidential candidate are not "regularly given"? 3 U.S.C. § 15(d)(2)(B)(ii)(II). There is no clear answer to this question, and we are uncertain if an appeal to the courts would lie from the joint session.

By contrast, a holding that the President is not an "Officer of the United States" would authoritatively resolve the Section 3 case against the Petitioner. In that event, it will be the people, and not judges, or state officials, or Congress, who will decide.