Congress could try to expel Trump from office under the 14th Amendment, but it probably won’t do that

Former Republican President Donald Trump won back the White House on Nov. 5 after battling his 2020 election loss with baseless claims of widespread fraud.

Some social media users have claimed that efforts by Trump, now president-elect, to overturn the 2020 election results and remain in power disqualify him from holding office again under the 14th Amendment to the U.S. Constitution .

“As a reminder, Donald Trump may still be barred from being sworn in as president for inciting an insurrection in violation of Section 3 of the 14th Amendment,” one Threads post said.

Trump’s possible disqualification under the 14th Amendment was the subject of a lawsuit in Colorado brought by a group of voters. This led to the US Supreme Court ruling in March that states do not have the authority to exclude candidates from federal office based on this constitutional amendment. The U.S. Supreme Court ruled in Trump v. Anderson that Colorado could not bar Trump from the vote, overturning a Colorado Supreme Court decision but failing to decide whether Trump participated in an insurrection. The Colorado Supreme Court found that Trump participated in an insurrection.

Legal scholars who spoke to PolitiFact said the court’s decision means that any enforcement of the 14th Amendment to keep Trump from the White House must come through Congress. Given the current political state of Congress (Republicans control the House of Representatives), this almost certainly won’t happen until January 20, when Trump is sworn in as the 47th president. (Unofficial election results for 2024 show Republicans will have control of the Senate in the next Congress; control of the House is still uncertain as votes are still being counted.)

What is Section 3 of the 14th Amendment?

Section 3 of the 14th Amendment, passed after the Civil War, was intended to prevent former Confederate officials from holding federal office. It states that a person who has previously taken an oath of office and “participated in insurrection or rebellion” against the United States may not hold office in the United States. A two-thirds majority of Congress may revoke this disqualification.

Congress invoked the section for several potential officeholders after the Civil War when it refused to grant seats to certain members. And Congress passed the Enforcement Act in 1870 to enforce the provision. In 1872, Congress passed the Amnesty Act, which lifted Prohibition for most former Confederates.

A New Mexico court in 2023 disbarred a county commissioner from holding office under this section because he was convicted of participating in the January 6, 2021 insurrection, one of the rare cases in which this section was enforced since the Reconstruction era became. The U.S. Supreme Court affirmed that ruling this year, reaffirming its ruling in the Colorado case that states have the authority to enforce the ban on state officials.

How can Section 3 be enforced?

A central question in the Colorado case, ultimately decided by the U.S. Supreme Court in March, was whether Section 3 disqualification was “self-executing” or whether a decision by Congress or the courts was required.

In presenting its opinion in this case, the majority of the court stated that Congress had the power to enforce Section 3 of the 14th Amendment and that states could not enforce it on federal officials. The court pointed to Section 5 of the amendment, which states that Congress “shall have power to enforce the provisions of the amendment by appropriate laws.”

The court’s three liberal justices, along with Trump-appointed conservative Justice Amy Coney Barrett, agreed with the underlying ruling that states cannot enforce Section 3. However, they wrote separate opinions arguing that the majority should not have gone further than that to dictate how else Section 3 could be enforced.

Because of this ruling, most legal scholars agree that disqualifying Trump under the 14th Amendment would have to come expressly from Congress.

Legal scholars said there is no reason to believe Congress will expel Trump from office because of his efforts to overturn the 2020 election.

“I think whatever the legal argument for it is, in practice it’s just not going to happen because obviously Republicans are going to be totally against it,” said Ilya Somin, a law professor at George Mason University. “But I also see little movement among Democrats to do this.”

The U.S. Supreme Court ruling left unclear whether specific laws would be needed for enforcement or whether Congress could refuse to certify Trump’s election on Jan. 6, 2025, legal experts said.

Derek Muller, a law professor at the University of Notre Dame, said a congressman could object to electoral votes for Trump on the grounds that he participated in an insurrection, but the Electoral Count Act does not authorize Congress to conduct a full investigation of the facts to be carried out when the votes are confirmed. In any case, the future makeup of Congress ensures that any attempts to deny Trump’s certification on these grounds will be futile.

Some scholars disagree that the court’s decision means Congress has exclusive power to enforce the section. Law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, who published an article in 2024 arguing that Trump was disqualified from office under Section 3 of the 14th Amendment, wrote in a upcoming article for the Harvard Law Review that they do not believe the Court’s decision means that Congress has exclusive power to enforce Section 3.

Although the liberal justices’ concurring opinion suggests that they believe the majority has given exclusive enforcement power to Congress, Baude and Paulsen wrote, “At no time did the Court say that Section 5 legislation was constitutionally necessary.” , in order for Section 3 to be legally valid. “Violence.”

This is a point of debate among experts, and other legal scholars PolitiFact spoke with said they believe the court’s decision means that enforcement of Section 3 will have to come through Congress.

“I think it’s been pretty clear from the majority that in their view, only Congress is the one that can do this,” Muller said.

Did Trump take part in the insurrection?

Even after his campaign’s legal cases challenging the 2020 election results failed and states certified their presidential elections for President Joe Biden, Trump continued his campaign to block Congress from certifying Biden’s victory. His campaign compiled alternative, uncertified voter lists and pressured Vice President Mike Pence to reject electoral votes from states he claimed were rife with fraud.

After a mob of his supporters broke into the US Capitol on January 6, 2021 and delayed the certification of the vote, the House of Representatives impeached Trump for “incitement of insurrection.” The Senate acquitted Trump of this charge.

But no federal court has found that Trump participated in an insurrection, nor has he been found guilty under the Insurrection Act or any other federal law that would disqualify him from holding office under Section 3 of the 14th Amendment.

“Congress has not passed a liability law,” Muller said. “He has not been prosecuted under the Insurrection Act, let alone found guilty under the Insurrection Act, which would disqualify him. Therefore, there are currently no statutory mechanisms enacted by Congress to determine his eligibility.”

Trump’s harshest Democratic critics have made clear they have no intention of enforcing Section 3 of the 14th Amendment to keep him from taking office, and Republicans in Congress are eager for his return to the White House. Under the procedures laid out by the U.S. Supreme Court, it is almost certain that Trump will not be prevented from taking office.