Fourteenth Amendment, Section 3

Section 3: Disqualification from office for insurrection or rebellion

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.

Soon after losing the Civil War in 1865, states that had been part of the Confederacy began to send "unrepentant" former Confederates (such as the Confederacy's former vice president, Alexander H. Stephens) to Washington as Senators and Representatives. Congress refused to seat them and drafted Section 3 to perpetuate, as a constitutional imperative, that any who violate their oath to the Constitution are to be barred from public office.[191] Section 3 disqualifies from federal or state office anyone who, having taken an oath as a public official to support the Constitution, subsequently engages in "insurrection or rebellion" against the United States or gives "aid and comfort" to its enemies.[192][193] Southerners strongly opposed it, arguing it would hurt reunification of the country.[192]

Section 3 does not specify how it is to be invoked, but Section 5 says Congress has enforcement power. Accordingly, Congress enforced Section 3 by enacting the Enforcement Act of 1870, the pertinent portion of which was repealed in 1948; there is still a current federal statute (18 U.S.C. § 2383) that was initially part of the Confiscation Act of 1862 (and revised in 1948), disqualifying insurrectionists from federal office.[194] Moreover, each house of Congress can expel or exclude members for insurrection or other reasons, although it is uncertain whether more votes may be required to expel than to exclude.[195][196][197] A further way that Congress can enforce Section 3 is via impeachment, and even prior to the adoption of the Fourteenth Amendment Congress impeached and disqualified federal judge West Humphreys for insurrection.[198]

After the amendment's adoption in 1868, disqualification was seldom enforced in the South.[191][192] At the urging of President Ulysses S. Grant, in 1872 Congress passed the Amnesty Act, which removed the disqualification from all but the most senior Confederates.[196] In 1898, as a "gesture of national unity"[192] during the Spanish–American War, Congress passed another law broadening the amnesty.[199][200] Congress posthumously lifted the disqualification from Confederate general Robert E. Lee in 1975,[201] and Confederate president Jefferson Davis in 1978.[192][193][202] These waivers do not bar Section 3 from being used today.[196]

Between Reconstruction and 2021, Section 3 was invoked only once: it was used to block Socialist Party of America member Victor L. Berger of Wisconsin—convicted of violating the Espionage Act for opposing US entry into World War I—from assuming his seat in the House of Representatives in 1919 and 1920.[192][197][203] Berger's conviction was overturned by the Supreme Court in Berger v. United States (1921), after which he was elected to three successive terms in the 1920s; he was seated for all three terms.[204]

January 6 United States Capitol attack

On January 10, 2021, Nancy Pelosi, the Speaker of the House, formally requested Representatives' input as to whether to pursue Section 3 disqualification of outgoing President Donald Trump because of his role in the January 6 United States Capitol attack.[193][191]

On January 11, 2021, Representative Cori Bush (D-MO) and 47 cosponsors introduced a resolution calling for expulsion, under Section 3, of members of Congress who voted against certifying the results of the 2020 US presidential election or incited the January 6 riot. Those named in the resolution included Republican Representatives Mo Brooks of Alabama and Louie Gohmert of Texas, who took part in the rally that preceded the riot, and Republican Senators Josh Hawley of Missouri and Ted Cruz of Texas, who objected to counting electoral votes to certify the 2020 presidential election result.[193][191]

After Representative Madison Cawthorn (R-NC) declared his intent to run for re-election in 2022, a group of North Carolina voters from Cawthorn's district filed suit, alleging that a speech he gave immediately prior to the Capitol attack incited it, and that therefore Section 3 disqualified him from holding federal office. A federal judge entered a preliminary injunction in favor of Cawthorn, citing the Amnesty Act of 1872;[205] however, on May 24, 2022, an appeals court ruled that this law applied only to people who committed "constitutionally wrongful acts" before 1872.[206] A similar challenge, which a federal court declined to block, was filed against Marjorie Taylor Greene (R-GA) and heard in April 2022 in Atlanta. Greene sued to strike down as unconstitutional the law that allowed her eligibility to be contested.[207]

Couy Griffin, an Otero County, New Mexico commissioner, was barred from holding public office for life in September 2022 by District Court Judge Francis Mathew, who found his participation as the leader of the Cowboys for Trump group during the attack on the Capitol was an act of insurrection under Section 3.[208][209]

Trump disqualification argument

In August 2023, two prominent conservative legal scholars who are active members of the Federalist Society wrote in a research paper that Section 3 of the 14th Amendment disqualifies Donald Trump from being president as a consequence of his actions involving attempts to overturn the 2020 United States presidential election.[210][211] Conservative legal scholar J. Michael Luttig and liberal legal scholar Laurence Tribe soon concurred in an article they co-wrote, arguing Section 3 protections are automatic and "self-executing", independent of congressional action.[212] Luttig explained the reasoning during television appearances.[213] A court may be required to make a final determination that Trump was disqualified under Section 3, according to some legal scholars.[192][213][214] Some secretaries of state, who oversee elections in states, soon began preparing for potential challenges relating to whether Trump might be excluded from November 2024 ballots.[215][216]

On August 24, 2023, Lawrence Caplan, a tax attorney in Palm Beach County, Florida, filed a challenge in the United States District Court for the Southern District of Florida to disqualify Trump from the 2024 General Election, citing the 14th Amendment.[217][218] One week later on September 1, United States District Judge Robin L. Rosenberg dismissed the case for lack of standing.[219]