At Volokh Conspiracy, Josh Blackman and Seth Barrett Tillman have this response to John Mikhail's post (noted here) on "officers of the United States" (Part 1, with Part 2 to follow). From the introduction:
We appreciate that Mikhail thought our scholarship was "detailed," but we were surprised by his conclusion. Could it be that we have "overlooked" leading evidence to the contrary? Or worse, were we aware of this contrary evidence, yet consciously chose to "ignore"? No. We have addressed in our scholarship almost all of the arguments that Mikhail advances in his post. He does not indicate with any specificity what evidence was "ignored or overlooked" in the literature by others or by us. Perhaps Mikhail is not persuaded by our prior publications and responses. But that's quite a different claim from asserting that something significant was "ignored or overlooked."
Mikhail's post closes with this admonition: "the Justices should think long and hard before declaring that the President of the United States is not an Officer of the United States for the purposes of Section Three." Were Mikhail merely making intellectual points about an abstract legal question, we would be inclined to not reply with such rapidity. Indeed, Mikhail has had the opportunity to put his thoughts into writing on these issues since circa 2017. Here, at the eleventh hour, after briefing and oral argument in Trump v. Anderson, after the decision has already been assigned to a Justice and is likely substantially drafted, this is yet another attempt at rushed scholarship. We view recent posts by Mark Graber and others in a similar fashion. We use this opportunity to respond to Mikhail's primary points. …
Related, from the same authors: Griffin's Case (1869) and The Enforcement Act of 1870 (responding to this post by Mark Garber).
UPDATE: Here is Part 2 of the authors' response to John Mikhail. There's a lot about Justice Story.
Posted at 12:06 AM