Q: Who enforces the insurrection rules in the 14th Amendment, section 3?
The United States ended direct enforcement of Section 3 of the 14th Amendment on June 25, 1948. However, others have resorted to Section 3 in other matters.
Congress when it suits them.
The House of Representatives twice denied Berger his seat in the House due to his original conviction for espionage using Section 3 of the Fourteenth Amendment to the United States Constitution regarding denying office to those who supported "insurrection or rebellion". The Supreme Court overturned the verdict in 1921 in Berger v. U.S., and Berger won three successive terms in the House in the 1920s.
ARTICLE I: INCITEMENT OF INSURRECTION
The Constitution provides that the House of Representatives “shall have the sole Power of Impeachment” and that the President “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”. Further, section 3 of the 14th Amendment to the Constitution prohibits any person who has “engaged in insurrection or rebellion against” the United States from “hold[ing] any office … under the United States”.
The courts when called upon by advocacy groups.
- As of June 7, 2022, "Advocacy groups have mounted nine challenges so far."
After ratification of the Reconstruction Amendments (13th, 14th, and 15th), Congress passed the "Enforcement Act of 1870" to implement provisions of those amendments. Sections 14 and 15 implemented Section 3 of the 14th Amendment.
Section 14 required a proceeding in a "circuit or district court of the United States" to remove a person from office without pain or penalty with an exception for Congress or State legislatures. Section 15 punished, again in a "circuit or district court of the United States", any who "knowingly" violated Section 3 of Article 14.
On June 25, 1948, a revision of the Criminal Code of the United States (Title 18) was enacted. Sections 14 and 15 of the Enforcement Act of 1870 were effectively repealed thus ending United States direct enforcement of Section 3 of the 14th Amendment. The replacement provision for insurrection is 18 U.S. Code § 2383 which broadens the scope of the provision against holding any office under the United States without requiring the person to have first taken an oath "to support the Constitution of the United States". However, to take effect the prohibition on holding office does require a conviction.
The parts of Section 3 of the 14th Amendment no longer present in United States law are:
... or under any state, ... or as an executive or judicial officer of any State, ...
CHAP CXIV ("Enforcement Act of 1870") May 31, 1870.
Sec. 14. And be it further enacted, That whenever any person shall hold office, except as a member of Congress or of some State legislature, contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the district attorney of the United States for the district in which such person shall hold office, as aforesaid to proceed against such person by writ of quo warranto, returnable to the circuit or district court of the United States in such district, and to prosecute the same to the removal of such person from office; and any writ of quo warranto so brought, as aforesaid, shall take precedence of all other cases on the docket of the court to which it is made returnable, and shall not be continued unless for cause proved to the satisfaction of the court.
Sec. 15. And be it further enacted, That any person who shall hereafter knowingly accept or hold any office under the United States, or any State to which he is ineligible under the third section of the fourteenth article of amendment of the Constitution of the United States, or who shall attempt to hold or exercise the duties of any such office, shall be deemed guilty of a misdemeanor against the United States, and, upon conviction thereof before the circuit or district court of the United States, shall be imprisoned not more than one year, or fined not exceeding one thousand dollars, or both, at the discretion of the court.
Replaced by 18 U.S. Code § 2383.
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.