This 87-page research paper (72 page paper, 15-page appendices) by James Heilpern and Michael T. Worley was referenced in a January 24, 2024 article by Roger Parloff titled hat Justice Scalia Thought About Whether Presidents Are “Officers of the United States”.

The purpose of this paper was to "collect and catalog extensive evidence" contradicting Donald Trump's Colorado Supreme Court brief statement that “not one authority holds that the President is an officer of the United States[:] no case, no statute, no record of Congressional debate, no common usage, no attorney general opinion. Nothing.” 

Below is the full research paper abstract located on SSRN online at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4681108

The 3rd paragraph of the below abstract references the SSRN abstract & research paper by William Baude and Michael Stokes Paulsen entitled The Sweep and Force of Section Three.

The 72-page research paper by Heilpern & Worley has been uploaded below the Abstract. The 15-page Appendices section has been uploaded separately below the paper.

Reference:

SSRN online

James Heilpern

Brigham Young University - J. Reuben Clark Law School

Michael T. Worley

Independent

Date Written: January 1, 2024

Abstract

In 1868, three years after the conclusion of the Civil War and the assassination of Abraham Lincoln, the 14th Amendment was ratified and became part of the United States Constitution. The Amendment officially overturned the notorious Dred Scott decision and was designed to grant citizenship and ensure equal protection under the law for recently freed slaves. But Section 3 of the Amendment also contained a provision that limited the ability of a small class of a former Confederates—those that had previously taken oaths to support the U.S. Constitution—from holding public office in the future:

"No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability."

Six months ago, William Baude and Michael Stokes Paulsen made headlines by publishing an article on SSRN, The Sweep and Force of Section Three, in which they argued that Donald Trump’s actions on January 6, 2021 qualified as an insurrection and that Section 3 therefore disqualified him from being elected President again. At the time, Trump was (and remains) the front runner for the Republican nomination for President in 2024. Baude and Paulsen’s paper inspired lawsuits in 21 states, seeking to remove President Trump from the upcoming primary ballots.

Most of the media attention has focused on whether Trump actually “engaged in insurrection.” This paper focuses on a far less titillating question. In order for Section 3 to apply to Donald Trump, he must have been an “officer of the United States” prior to committing the alleged insurrection. Baude and Paulsen argue that, as President of the United States, Trump was an officer of the United States. But not all scholars agree. In an earlier piece by Josh Blackman and Seth Tillman, Is the President an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment?, Blackman and Tillman examined the original 1789 constitution and concluded that the founding generation understood that the President was not an “officer of the United States.” . Based on this conclusion, Blackman and Tillman “contend that the phrase ‘officer of the United States’ has the same meaning in Section 3 as it does in the Constitution of 1788.” This implies that “the elected President is not an ‘officer of the United States.’”

The answer to this dispute has undeniable urgency: On December 19, 2023, the Colorado Supreme Court concluded that Donald Trump is ineligible to be on the Colorado Republican primary ballot for President because he is disqualified under Section 3. The opinion reversed a trial court judge who had found Trump did commit insurrection but that Section 3 did not apply because Presidents are not officers of the United States. Rejecting Trump’s contention that the phrase “officer of the United States” was a term of art, the state supreme court concluded that “[i]f members of the Thirty-Ninth Congress and their contemporaries all used the term ‘officer’ according to its ordinary meaning to refer to the President, we presume this is the same meaning the drafters intended it to have in Section Three.” The court cited examples of the contemporaries of the Fourteenth Amendment referring to the President as an officer, but only cited limited evidence about the use of the full term “officer of the United States.” Baude and Paulsen similarly cite limited historical evidence, spending under ten pages on this issue, which they spend discussing logical reasoning more than historical evidence.

This article attempts to fill the gap in historical evidence and provide a more detailed theoretical foundation. Part I reviews Blackman and Tillman’s article and other arguments made in the Colorado litigation, including the argument that the President is not an officer because he is “elected” not “appointed,” and the argument that he is not an officer because he does not take an oath to “support” the Constitution as required by Article VI, but instead the Article II oath to “preserve, protect, and defend” the Constitution. In Part II, we respond to these arguments as a textual matter, ultimately concluding that the President was an “officer of the United States” at the time of the Founding. Here, we (1) provide corpus linguistic evidence that the full phrase “officer of the United States” was not a term of art in contradiction to the explicit arguments made by President Trump at the Colorado Supreme Court; (2) demonstrate that at the time the Constitution was ratified, the words “appoint” and “elect” were largely used interchangeably; (3) provide founding era cites, including to a 1799 Act regarding the post office, that either explicitly identify the President as an "officer of the United States" or otherwise indicate he is such an officer; and (4) present evidence that many state officers prior to the Civil War took an oath similar to the President’s and were still unambiguously covered by Section 3 despite not taking an oath that follows the precise language of Article VI of the Constitution. In Parts III and IV, we then turn to the meaning of the phrase at the time of the ratification of the Fourteenth Amendment. In Part III, we discuss and confirm that historical records including the text, legislative history and ratification debates of the Fourteenth Amendment, the legislative history of the Fifteenth Amendment, and popular sources such as contemporary newspapers demonstrate that elected officials were often referred to as officers, including “officers of the United States.” Part IV then discusses specific evidence that the President is not just an officer, but is an “officer of the United States” as contemporaries of the 14th Amendment would have understood that term. The most probative evidence is perhaps proclamations from President Andrew Johnson—the President at the time the 14th Amendment was ratified—explicitly referring to himself as either the “chief executive officer of the United States” or “chief civil executive officer of the United States.” Other evidence comes from numerous texts, including legislative history, Johnson’s impeachment trial, and newspapers. Part V reexamines case law that Blackman and Tillman rely on. We then conclude.

In his brief to the Colorado Supreme Court, President Trump argued, that “not one authority holds that the President is an officer of the United States[:] no case, no statute, no record of Congressional debate, no common usage, no attorney general opinion. Nothing.” We have done our best to collect and catalog extensive evidence to the contrary.

Blogger Comment: I have been unable to rotate the below Appendices section clockwise.