At Balkinization, John Mikhail (Georgetown): A Reality Check on "Officers of the United States" at the Founding. From the introduction:
The Supreme Court seems poised to reverse Colorado’s decision to exclude Donald Trump from its Republican presidential primary ballot on grounds other than that Trump did not take the right kind of oath to support the Constitution. Nevertheless, one or more of the Justices might still be inclined to agree with Trump that the President is not an “officer of the United States” within the meaning of Section Three of the Fourteenth Amendment. Trump prioritized this argument in his briefs to the Court, drawing primarily on the scholarship of Seth Barrett Tillman and his co-author, Josh Blackman. While I have long admired the detailed work that Professors Tillman and Blackman have done on this topic, I remain unconvinced by their core argument that this term refers only to appointed officials, not elected officials. In this post, I outline some of the reasons why, drawing upon research that I have pursued for many years on the Officers of the United States to which the Necessary and Proper Clause refers. Much of the evidence I discuss here has been ignored or overlooked in the existing scholarship on Section Three, and most of it does not appear in any of the briefs in Trump v. Anderson. Nonetheless, all of this evidence seems both relevant and probative of how this term was actually understood and used by the founding generation. Collectively, it lends support to the conclusion that the President is an “officer of the United States” for the purposes of Section Three.
The ensuing discussion is interesting and insightful, as Professor Mikhail always is. A methodological note: much of the discussion involves very close reading of the record of the Convention debates, as it relates to the development of particular constitutional phrases. Of course, none of this was available to the public at the time of ratification. So how much weight should be placed on it, in an original public meaning analysis? I agree it should get some weight, as evidence of how educated and involved people of the founding era understood particular language (the common originalist response). I'm still struggling with how much weight. What if, as the post argues particularly with respect to the appointments clause, the drafting history suggests a meaning different from what may appear on the face of the text?
UPDATE: Professor Mikhail has posted this minor correction to his discussion of Justice Story in the above post.
Posted at 6:02 AM