The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment

"Updated September 7, 2022

 In the aftermath of the events of January 6, 2021, in and around the U.S. Capitol, there have been calls for accountability for those who participated, as well as for those who may have helped instigate it. The breach of the Capitol resulted in numerous injuries, multiple deaths, and significant property damage. It also delayed Congress’s constitutional duty of certifying electoral votes for President-elect Joseph Biden and caused Capitol Police and other law enforcement personnel to evacuate the Vice President and Members of Congress from the House and Senate floors to safer locations. Some observers, historians, and other commentators are wondering whether the Disqualification Clause of the Fourteenth Amendment might provide a mechanism to disqualify individuals who participated in or encouraged the siege, including former and sitting government officials, from holding office.

Invocation of the Disqualification Clause raises a number of novel legal questions involving the activities that could trigger disqualification, the offices to which disqualification might apply, and the mechanisms to enforce disqualification. The clause has been seldom used, and the few times it has been used in the past mainly arose out of the Civil War—a very different context from the events of January 6. It is therefore unclear to what extent historical precedents provide useful guidance for its application to the events of January 6. This Legal Sidebar describes the Disqualification Clause, explains to whom it might apply and what activities could incur a bar on holding office, and discusses possible mechanisms to implement it. 

The Disqualification Clause

Section 3 of the Fourteenth Amendment provides:

No Person shall be a Senator or Representative in Congress, or elector of President and VicePresident, 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.

In short, Section 3 disqualification appears to apply to any covered person who has taken an oath to uphold the Constitution of the United States and thereafter either (1) engages in insurrection or rebellion against the United States or (2) gives aid or comfort to the enemies of the United States, unless a supermajority of Congress “removes such disability.”.."
Insurrection Bar to Office