Shifting the Section 3 Officer Argument from ‘Off the Wall’ to ‘On the Wall’

Think back to 2010. The Affordable Care Act was signed into law. Challenges were filed across the country. Each case presented a central question: could Congress mandate that people purchase health insurance? A vigorous debate formed. Some legal scholars, including my colleague Randy Barnett, argued that the federal mandate was beyond Congress’s powers. It was unprecedented, they said. Other scholars argued that the mandate was squarely in Congress’s powers, or alternatively, there was no mandate at all. Needless to say, the position that Barnett and others advanced was ridiculed at every step. His position was called crazy, stupid, frivolous, and worse. 

But then something changed. A federal district court judge in Florida agreed with Barnett’s argument. He wrote a careful decision laying out both sides, and ultimately concluding that the mandate was beyond Congress’s powers. Around the same time, prominent conservatives adopted the rallying cry that the federal government can’t make you buy health insurance, or for that matter, broccoli. To use Jack Balkin’s framing, an argument that was “off the wall” became “on the wall.” How it happened is complex. I discuss the history at length in my 2012 book, fittingly titled Unprecedented. I won’t rehash all of the developments here.

Today, I feel a sense of deja vu. Or maybe it’s nostalgia. Debates over Section 3 bring me back to the heady days of 2010. I, along with my colleague Seth Barrett Tillman, contend that the President is not an “Officer of the United States” for purposes of Section 3. And, as could be expected, critics call our position crazy, stupid, frivolous, and worse. President Trump’s counsel adopted our position. And wouldn’t you know it, a trial judge in Denver accepted our position! Her opinion closely tracked how we’ve presented our argument for years. The judge wrote a careful decision laying out both sides, and she ultimately concluded that the better argument is that Trump is not covered by Section 3’s “Officer of the United States”-language. Unsurprisingly, critics still call our position crazy, stupid, frivolous, or worse. Well, they don’t mention us by name. Like with the Foreign Emoluments Clause cases, Seth and I get the Voldemort treatment—we shall not be named, unless our position is rejected.

There is, of course, a big difference between the arguments in the ACA litigation and the arguments in the Section 3 cases. The challenge to Obamacare was premised on a line-drawing exercise: the ACA went further than any statute went before. In many regards, the argument in that case was limited to the facts of that case. Before 2009, very few scholars even considered whether Congress could regulate inactivity. But here, the officer-issue predates January 6. It predates Trump. Tillman has been repeatedly writing on these issues since 2008. He persuaded me circa 2012. And collectively, we have written hundreds of pages in articles, briefs, and blog posts on the scope of the Constitution’s “office”- and “officer”-language. (More than a few of our most extreme critics have written zero pages on this issue before January 6, and some have yet to publish anything on this issue.) Indeed, if we want to go back further, debates over the scope of the Constitution’s “office”- and “officer”-language were first raised during the ratification of the Constitution. (If you don’t get the reference, check out our writings on this topic.) Unlike the ACA issue, the office issue is no way tethered to Trump, January 6, and insurrection. The question is a purely legal one. Hence, either the President is an “officer of the United States” or he is not. 

Is the Blackman/Tillman “office” position still “off the wall” or is it “on the wall”? Is that position part of the mainstream, even if a minority position? Has the conservative legal movement found merit in this position? Will these forces once again align? I’ll let others decide. What I would say is that efforts to ridicule our argument as “stupid” or “frivolous” won’t work. There are valid arguments on both sides of the issue, and hyperbole is frequently a mask for weakness. The Colorado court’s ruling establishes at least that much. And past predictions that no court, including the Supreme Court, would or will ever adopt our position, have not aged well.