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UNCOVERED: 3 - The Untold Story

Professor Mark Graber responds to Blackman & Tillman on the 1868 Louisville Daily Journal

In response to the "new source" described in Josh's recent post (and Tillman's recent amicus brief, and earlier in this short SSRN piece by John Connolly) Professor Mark Graber writes at Balkinization: Eureka Not: The President is an Officer of the United States Redux, Redux . . . Mark Graber…

Reason

We're In The Section 3 Endgame Now

[This post is co-authored with Seth Barrett Tillman] On Friday, the Supreme Court granted certiorari in Trump v. Griswold, the Section 3 case from Colorado. On Tuesday, we filed our amicus brief. We have made efforts to think through a fair number of the issues, and we have written about…

Reason

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."

Reason

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A New, Rushed, Flawed Article In The Section 3 Debate

Scholars and lawyers should exercise caution before citing a new paper by James Heilpern and Michael T. Worley

Reason

Natelson on the Offices and Officers of the Constitution in 1788 and 1868

"Mr. Tillman has been joined by another legal scholar, Josh Blackman. Together, they have tried to reconstruct the meanings of all these words and phrases."

Reason

Blackman & Tillman, On The Wall

After the Denver trial court held that the President was not an "Officer of the United States," I observed that the Blackman-Tillman position on Section 3 had moved from "off the wall" to "on the wall." If there is a wall in the conservative movement, it is Fox News. Over…

Reason

Jefferson Davis: President of the United States?

Five Responses to the Jefferson Davis Horrible

Reason

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Griswold v. Anderson: The Section 3 Case Before The Colorado Supreme Court

[This post is co-authored with Professor Seth Barrett Tillman]. 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…

Reason

Moving The Section 3 Officer Argument From "Off The Wall" to "On The Wall"

Debates about Section 3 remind me of debates over the Affordable Care Act’s individual mandate

Reason

Colorado District Court "Holds that Section Three of the Fourteenth Amendment Does Not Apply to Trump"

"The Court is persuaded that 'officers of the United States' did not include the President of the United States."

Reason

Laphonza Butler Better Hope Other Senators Are Textualists

The residency requirement for Senators applies to those who are "elected," and not "appointed."

Reason

Why President Trump is an "Officer" who Can be Disqualified From Holding Public Office Under Section 3 of the 14th Amendment [Updated]

The opposing view is contrary to the original meaning, and leads to absurd conclusions.

Reason

Professor Akhil Amar, On His Podcast, Responds to Attorney General Mukasey and the Tillman-Blackman Position

Section 3 civility outside and inside Yale Law School.

Reason

Professor Calabresi in WSJ: President Trump Can Not Be Disqualified

Professor Calabresi changes his mind based on Tillman's argument: the President is not an "Officer of the United States"

Reason

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CONAN the Librarian: A Constitutional Law Treatise from the Library of Congress

Check it out in a 2780-page PDF ("The Constitution of the United States of America: Analysis and Interpretation"), or browse by section here. CONAN is indeed its nickname, at least among some. Thanks to Prof. Seth Barrett Tillman for pointing out that the version covering all the cases through June…

Reason

Smith's Indictment of Trump In Florida Suggest He Won't Bring An Insurrection Charge in D.C.

Does the special counsel "seek to avoid distracting fights"?

Reason

Trump's Lawyers Cite, And Disagree with Blackman & Tillman On Whether The President Is Or Is Not An "Officer of the United States"

"To be clear, we mean no disrespect to either of these fine academics but their views on this matter are idiosyncratic."

Reason

New York District Attorney Bragg Argues That President Trump Was Not An "Officer Of The United States"

Bragg’s argument may harm Trump in the removal case, but in the long run, this argument could help Trump in future political disqualification-related litigation under Section 3 of the Fourteenth Amendment.

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New In Lawfare: "Why the Manhattan DA's Trump Case Cannot Be Removed to Federal Court"

Seth Barrett Tillman and I discuss whether the President is an "Officer of the United States" for purposes of the federal officer removal statute.

Reason

Offices and Officers of the Constitution, Part IV: The "Office . . . Under the United States" Drafting Convention

A synthesis of our prior writings on the meaning of “Office . . . under the United States.”

Reason

Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses

A synthesis of our prior writings, and clarification on the meaning of “Officers of the United States.”

Reason

No, 18 U.S.C. § 2071 Cannot Disqualify Trump From The Presidency

That statute disqualifies a person from "holding any office under the United States."

Reason

Bruen, Originalism, and Post-Enactment Practice

What role should liquidation play in originalism?

Reason

Janus and Dobbs

The leaked opinion places the public "on notice . . . regarding this Court’s misgivings about" Roe.

Reason

Houston Community College v. Wilson Reaffirms That Elected Officials Have Free Speech Rights

This basic principle was contested during President Trump's second impeachment trial.

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