The Final Countdown: Navigating Section 3

[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 two of the most likely issues that the Court will address and which may resolve the case: (i) that Griffin’s Case (1869) provides the rule of decision, that is, Section 3 necessitates federal enforcement legislation; and (ii) that the President is not an “Officer of the United States.” The former position is based on a full-length law review article that we shared in August, though we have been developing that position—in particular, the sword-shield dichotomy—since 2021. The latter position has been a subject of our publications for a good many years. Since 2008, Tillman has been writing that the President is not an “Officer of the United States.” Circa 2012, shortly after Blackman began teaching, he came round to Tillman’s position.

Suffice to say, we have been giving these issues substantial thought for some time. Others have not. For example, a recent, rushed entry in this debate demonstrates the risks of jumping in too hastily. Indeed, several media accounts that relied on that paper have already had to post corrections. We have no doubts there will be more rushed and flawed entries in the debate. Critics with little or no expertise in the field will find something, anything, to prove that we are wrong. No doubt these critics will be unfamiliar with our full body of scholarship, which well exceeds a thousand pages. Critics will attack positions we never took, and ignore the positions we have actually taken. Critics will be unfamiliar with the proper context of sources from the 18th and 19th centuries. And critics will approach their conclusion with absolute certitude that they are right and Tillman/Blackman are wrong. Trust us, we’ve seen it all before. We could make a list of people who have said we were wrong, and then later had to retract or more. The list keeps growing.

Over the next two months or so, the United States Supreme Court is likely to provide some resolution to one or more of these contentious issues. And, we expect that more than a few will try to leave a mark on this debate in the near term and prior to judicial resolution. If and how we respond will be a function of what time and other constraints we face in this final, pivotal period. Our candid message to you—the reader—is to approach such new, late-breaking entries in the debate with some caution.

We are in the Section 3 endgame now.