In Case You’re Wondering

For those following the back and forth on whether section 3 of the 14th Amendment bars Trump from running for president, here's a new law-review article by BYU law prof James Heilpern and Michael Worley that marshals evidence that the president is an "officer of the United…

— Ed Whelan (@EdWhelanEPPC) January 4, 2024

This is how it’s done:

This article attempts to fill the gap in historical evidence and provide a more detailed theoretical foundation. Part I reviews Blackman and Tillman’s article and other arguments made in the Colorado litigation, including the argument that the President is not an officer because he is “elected” not “appointed,” and the argument that he is not an officer because he does not take an oath to “support” the Constitution as required by Article VI, but instead the Article II oath to “preserve, protect, and defend” the Constitution. In Part II, we respond to these arguments as a textual matter, ultimately concluding that the President was an “officer of the United States” at the time of the Founding. Here, we (1) provide corpus linguistic evidence that the full phrase “officer of the United States” was not a term of art in contradiction to the explicit arguments made by President Trump at the Colorado Supreme Court; (2) demonstrate that at the time the Constitution was ratified, the words “appoint” and “elect” were largely used interchangeably; (3) provide founding era cites, including to a 1799 Act regarding the post office, that either explicitly identify the President as an "officer of the United States" or otherwise indicate he is such an officer; and (4) present evidence that many state officers prior to the Civil War took an oath similar to the President’s and were still unambiguously covered by Section 3 despite not taking an oath that follows the precise language of Article VI of the Constitution. In Parts III and IV, we then turn to the meaning of the phrase at the time of the ratification of the Fourteenth Amendment. In Part III, we discuss and confirm that historical records including the text, legislative history and ratification debates of the Fourteenth Amendment, the legislative history of the Fifteenth Amendment, and popular sources such as contemporary newspapers demonstrate that elected officials were often referred to as officers, including “officers of the United States.” Part IV then discusses specific evidence that the President is not just an officer, but is an “officer of the United States” as contemporaries of the 14th Amendment would have understood that term. The most probative evidence is perhaps proclamations from President Andrew Johnson—the President at the time the 14th Amendment was ratified—explicitly referring to himself as either the “chief executive officer of the United States” or “chief civil executive officer of the United States.” Other evidence comes from numerous texts, including legislative history, Johnson’s impeachment trial, and newspapers. Part V reexamines case law that Blackman and Tillman rely on. We then conclude.

This is what the reference to “Blackman and Tillman” is about:

In an earlier piece by Josh Blackman and Seth Tillman, Is the President an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment?, Blackman and Tillman examined the original 1789 constitution and concluded that the founding generation understood that the President was not an “officer of the United States.” . Based on this conclusion, Blackman and Tillman “contend that the phrase ‘officer of the United States’ has the same meaning in Section 3 as it does in the Constitution of 1788.” This implies that “the elected President is not an ‘officer of the United States.’”

I visited the Robie House in August, and marveled to my daughter at the level of detail Frank Lloyd Wright concerned himself with, right down to the design and type of wood used in ornamentation of the rooms. She, being married to an engineer and working in drafting herself, said that’s what they (including architects) do.

Thus kind of attention to detail is what lawyers do. It’s called legal analysis, and it’s the basis of due process and equal protection of law (both of which are guaranteed to all persons at all levels of government in the United States by the 14th Amendment; and legal analysis) in this country.

This is also the kind of careful legal reasoning we expect from, but haven’t been getting (*cough cough*Dobbs, Hobby Lobby, et al.) from the Roberts Court.

The rot is not just from Trump and the current GOP officers.

There are complaints in the responses to the tweet that this all amounts to “hairsplitting.” That “hairsplitting” is why we enjoy the legal rights we take for granted. A bit more attention to such analysis would spare the country the most egregious Supreme Court decisions of recent memory.

Be careful what you wish for. You might get it.