Who enforces the insurrection rules in the 14th Amendment, section 3?

Question

The 14th amendment says:

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.

Some historians have said it may be applicable to the 2021 attempted coup. But how can it be enforced?

The proper question: law.stackexchange.com/questions/60239/… — 264 champagne bottles on ice, Commented Jan 17, 2021 at 6:29
Do you mean "enforce" as in "declare legal", or "enforce" as in "physically prevent"? Others have already pointed out that "declare legal" is down to Congress (checked by the Judiciary) but "physically prevent" might be more complex. — Mark Morgan Lloyd, Commented Jan 17, 2021 at 10:58

Clap 'No Hands' Politics · Accepted Answer · 2023-11-12 02:07:04Z

13

The Fourteenth Amendment offers a nuanced perspective on its enforceability. While Section 5 empowers Congress to enact legislation to enforce the Amendment's provisions, it does not necessarily preclude the idea that some portions of the Amendment are self-executing.

In other words, certain aspects of the Fourteenth Amendment, particularly Section 1, may be enforceable by the courts without the need for additional congressional action.

To illustrate this point, consider the 13th Amendment, which abolished slavery.

Despite having an enforcement provision, courts could enforce it without Congress passing specific laws.
The historical application and legal precedent support this interpretation, with courts having the authority to enforce Section 1 of the Fourteenth Amendment.

Supporting Resources

The Fourteenth Amendment Enforcement Clause

Section Five of the Fourteenth Amendment vests Congress with the authority to adopt “appropriate” legislation to enforce the other parts of the Amendment—most notably, the provisions of Section One. As Senator Jacob M. Howard explained, Section Five “enables Congress, in case the State shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment.”
Fourteenth Amendment, Section 5

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

edited Nov 12, 2023 at 2:07

answered Jan 17, 2021 at 0:14

Clap 'No Hands' Politics

2,6581 gold badge15 silver badges41 bronze badges

1

And indeed Art I sec 5 Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members
– James K
Commented Jan 17, 2021 at 0:18
2

Yes, but this is both incomplete and misleading, I think. Congress itself cannot pass bills of attainder. So the real q is who is enabled/authorized to make the determinations of fact, i.e. that someone in particular engaged in insurrection. Your answer only says Congress can make laws. And the prohibition on bills of attainder basically means that [by such laws] they have to give this power of making these determinations of fact to someone (else). The real q on enforcement is then who is authorized make these findings of fact in re insurrection.
– 264 champagne bottles on ice
Commented Jan 17, 2021 at 5:57
1

@JamesK: but that turned out was subject to judicial review: en.wikipedia.org/wiki/Powell_v._McCormack
– 264 champagne bottles on ice
Commented Jan 17, 2021 at 6:02
1

@JamesK but this question is not only about qualifications of members of congress. Bernie: this answer is very misleading. Congress also has power to punish felonies committed on the high seas, but they don't hear maritime cases directly. Like all crimes, they are tried by a judge. In fact, the constitution lists dozens of powers of congress that are actually undertaken by the executive branch (enforced when necessary by the authority of the judicial branch) by authority granted by congress. Congress's power is only the power to enact statutes.
– phoog
Commented Jan 18, 2021 at 4:57
The fact that Congress can adopt enforcement legislation does not show that the Amendment is not also self-executing. In the same way, the 13th Amendment has an enforcement provision but that doesn't mean that a contract to enslave someone was enforceable until Congress wrote a law saying otherwise. The majority view applied in an actual 21st century case that was litigated and in historical application is that courts can enforce Section 3 of the 14th Amendment. Statutes passed by Congress had procedural tools (many civil procedure rules in effect) as much as anything.
– ohwilleke ♦
Commented Nov 12, 2023 at 1:27

| Show 4 more comments

264 champagne bottles on ice · Accepted Answer · 2021-01-17 08:27:54Z

The judiciary branch enforces it to some extent by 18 U.S. Code § 2383 (thanks to @Nate Eldridge for pointing this out):

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

The more indeterminate question is whether Congress itself can make the determination of insurrection and bar someone from running. I'm unsure what is the answer to that, but former officials were barred from holding any other office after being impeached and convicted, which is possible due to a different provision (Art. I sec. 3 cl. 7) that explicitly allows disqualification (by the Senate) in those circumstances.

I think it's untested whether Congress by itself can merely bar someone in particular from holding office, as this may butt against the constitutional prohibition on bills of attainder. The case law on that is pretty convoluted, and some tests depend on whether some measure is considered a punishment or not, and whether punishment is the "main purpose" of the law. User phoog has now written an answer on law SE that (fairly coherently, imho) argues that the answer to that is "no, Congress can't do that by itself"; as user grovkin also pointed out over there, Alan Dershowitz (who defended Trump before) has been arguing along the same lines.

On the other hand, Reuters also covered this issue, and mentions a precedent in re direct application of Congress of the 14th, namely Victor Berger:

Under congressional precedent, only a simple majority of both chambers is needed to invoke this penalty. Congress can later remove the disqualification, but only if two-thirds of both houses vote in favor of doing so.

In 1919, Congress used the 14th Amendment to block an elected official, Victor Berger, from assuming his seat in the House because he had actively opposed U.S. intervention in World War I.

According to Wikipedia, Berger's actual conviction for espionage was overturned but his bar by Congress was not, although the reversal by SCOTUS came a bit late for Congress to consider it during Berger's actual term in office. Basically he sat out his term 1918-1920, but after SCOTUS overturned his conviction (on January 31, 1921) and he was reelected again in 1922 (and '24 and '26), I see no mention of Congress not seating him again, so I assume they relented. The fact that Berger's seating was not opposed from 1923 onwards (or even subject to a vote in the House thereafter) is explicitly confirmed in another source, but I'll omit quoting from that since it's written in fairly hagiographical tone.

Courts routinely disqualified people from office under Section 3 in the Reconstruction Era in non-Congressional, non-criminal, civil actions. — ohwilleke, Commented Nov 12, 2023 at 1:29

Rick Smith · Accepted Answer · 2024-03-04 17:21:52Z

On March 4, 2024, the United States Supreme Court reached a decision in Trump v. Anderson concerning the Colorado Supreme Court disqualification of President Trump from the Colorado presidential preference primary under Section 3 of the Fourteenth Amendment. The Court found by a unanimous decision that —