The 14th Amendment to the U.S. Constitution prohibits individuals who have engaged in insurrection or rebellion against the Constitution from holding office.
Section 3 of the amendment provides clear grounds for disqualification, stating that no person who has previously taken an oath to support the Constitution may hold office if they have engaged in such acts, unless Congress removes the disability with a two-thirds vote in each house.
Donald Trump’s potential disqualification under this provision has been evaluated in several legal and political forums, each adding weight to the argument that his actions may constitute grounds for disqualification.
Evidence of Insurrection
- Second Impeachment Trial
In January 2021, the House of Representatives impeached Trump for “incitement of insurrection” following the January 6 attack on the U.S. Capitol. While the Senate did not achieve the two-thirds majority needed for conviction, the majority vote in favor—including seven Republicans—underscored the gravity of the allegations. Inciting insurrection aligns closely with the criteria for disqualification under Section 3 of the 14th Amendment. - Colorado Judicial Proceedings
In Colorado, a court determined by “clear and convincing evidence” that Trump engaged in insurrection as defined by Section 3. Although the U.S. Supreme Court later ruled that states lack authority to disqualify candidates for federal office, it did not overturn the factual finding of insurrection. - House January 6th Committee Findings
The bipartisan House Select Committee on January 6 presented extensive evidence, including testimony from Republican witnesses, that Trump actively sought to overturn the 2020 election results. Notably, he pressured Vice President Mike Pence to reject Electoral College votes, a demand that lacked legal basis. His actions during the Capitol riot, including inflaming the crowd with calls against Pence, further support allegations of insurrection.
Legal and Constitutional Considerations
Despite the Supreme Court ruling in Trump v. Anderson suggesting that additional federal legislation may be required to enforce Section 3, several counterarguments support Congress’s ability to act without such legislation:
- Dicta in the Supreme Court Opinion
The suggestion for new implementing legislation is considered dicta—non-binding commentary not essential to the case’s decision. Congress is not obligated to adhere to such dicta. - Congress’s Role in Electoral Vote Counting
The Constitution assigns Congress the exclusive authority to count and evaluate Electoral College votes. This process, under the Electoral Count Act, is a political question beyond the purview of judicial review. - Existing Legislative Framework
The Electoral Count Act of 1887, amended in 2022, provides mechanisms for resolving disputes over Electoral College votes. A candidate disqualified under constitutional grounds, including Section 3 of the 14th Amendment, could be deemed to have votes that were not “regularly given,” making them subject to objection.
The Path Forward
To object to Electoral College votes for a disqualified candidate, a petition must be supported by at least 20% of members in both the House and Senate. If a majority in each chamber upholds the objection, those votes are excluded from the total, reducing the number needed to secure the presidency.
While Republican support for such actions is improbable given the political implications, particularly the prospect of elevating Kamala Harris to the presidency, Democrats have a constitutional duty to act.
Their oath to defend the Constitution requires them to challenge Electoral College votes cast for any candidate who is ineligible under the 14th Amendment. Upholding this principle is essential to maintaining the integrity of the Constitution and the democratic process.
