At Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman: Griswold v. Anderson: The Section 3 Case Before The Colorado Supreme Court. From the introduction:
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. … [extensive discussion of the arguments follows.]
And in conclusion:
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?
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.
UPDATE: From the same authors: Jefferson Davis: President of the United States? – Five Responses to the Jefferson Davis Horrible. From the introduction:
… It is straightforward enough to argue that the presidency, as an abstract matter, is not covered by Section 3. But the optics of the argument change when talking about a particular person becoming president: Jefferson Davis. How could it be that the Fourteenth Amendment would have allowed Jefferson Davis to become President?
We refer to this position as the Jefferson Davis Horrible. …
… [T]he Davis hypothetical leads to a predictable response: any reading of Section 3 that could lead to a President Jefferson Davis must be wrong. We think there are five possible responses to the Jefferson Davis Horrible. We don't specifically embrace these responses, in whole or in part. Moreover, we do not see any pressing need to address this question because whatever its answer, in the context of current Section-3 Trump-related cases, former President Trump never held any jurisdictional or triggering office—he never held a position that can be fairly characterized as an "officer of the United States" as that phrase was used in Section 3 and in the Constitution of 1788. As such, Trump cannot be excluded from the ballot based on Section 3. Nevertheless, others may disagree with our position on the scope of Section 3's "officer of the United States"-language and the Colorado Supreme Court asked questions related to Section 3's "office . . . under the United States"-language. For those reasons, below, we put forward some possible answers to the court's questions. …
Posted at 12:36 AM