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?

Answer 1

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.

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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.

Answer 2

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.

Answer 3

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.

• Victor Berger

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.

• Second Trump Impeachment

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."

Background

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, ...

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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.