Congress could try to remove Trump from office under the 14th Amendment, but probably won’t

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

Some social media users have claimed that Trump, now president-elect, has attempted to overturn the 2020 election results and remain in power, disqualifying him from running for office again under the 14th Amendment to the US Constitution.

“Reminder: Donald Trump may still be barred from being sworn in as president for inciting a rebellion in violation of Section 3 of the 14th Amendment,” a Threaded posts said.

Trump’s potential disqualification under 14th amendment was the subject of a Colorado lawsuit brought by a group of voters that led to the U.S. Supreme Court ruling in March that States lack power to disqualify candidates from federal office under this amendment. The US Supreme Court, in Trump v. Anderson, ruled Unable to keep Trump off the ballot, Colorado overturned a ruling by the Colorado Supreme Court, but it stopped short of deciding whether Trump engaged in sedition. The Colorado Supreme Court adamant that Trump was involved in sedition.

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

What is Section 3 of the 14th Amendment?

Section 3 of the 14th Amendment, enacted in the aftermath of the Civil War, was designed to prevent former Confederate officials from holding federal office. It said that a person who has previously taken the oath of office and “engaged in rebellion or sedition” against the United States cannot hold any office in the United States. A two-thirds vote in Congress can remove this disqualification.

Congress invoked the section for several potential officials after the Civil War when it refused to seat certain members. And Congress passed the Enforcement Act of 1870 to enforce the provision. In 1872, Congress passed the Amnesty Act, which lifted the ban on most former Confederates.

A New Mexico court in 2023 disqualified a county official from sitting under the section because he was convicted of taking part in the rebellion on 6 January 2021, one of the rare times the section has been enforced since the Reconstruction era. The U.S. Supreme Court upheld that decision this year, reinforcing its ruling in the Colorado case that states have the authority to enforce the ban against state officials.

How can section 3 be enforced?

A key issue in the Colorado case, eventually decided by the U.S. Supreme Court in March, was whether the disqualification from office under Section 3 was “self-executing“or whether it required some decision by Congress or the courts.

In delivering its opinion in that case, the court’s majority said that Congress has the power to enforce Section 3 of the 14th Amendment, and states cannot enforce it against federal officials. The court pointed to Section 5 of the amendment, which stated that Congress “shall have power to enforce the provisions of the amendment by appropriate legislation”.

The court’s three liberal justices, joined by Trump-appointed conservative Justice Amy Coney Barrett, agreed in the underlying ruling that states cannot enforce § 3. But they wrote separate opinions arguing that the majority should have gone no further than that to dictate how section 3 may otherwise be enforced.

Because of this ruling, most legal scholars agree that a disqualification for Trump under the 14th Amendment must come explicitly from Congress.

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

“I think regardless of the legal argument around it, as a practical matter, it’s just not going to happen, because of course the Republicans are going to be totally against it,” said Ilya Somin, a law professor at George Mason University. “But I also don’t see much in the way of a movement among Democrats to do that.”

The U.S. Supreme Court ruling left ambiguous whether enforcement requires specific legislation 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 member of Congress could object to electoral votes for Trump on the grounds that he was involved in sedition, but Act on counting of elections does not authorize Congress to have a full investigation of the facts when certifying the votes. In any case, the future makeup of Congress ensures that any attempt to deny Trump certification on these grounds will be futile.

Some scholars disagree that the court’s decision means Congress has the exclusive authority to enforce the section. Law professors William Baude from the University of Chicago and Michael Stokes Paulsen from the University of St. Thomas, who published a 2024 paper argued 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 that the Court’s decision means that Congress has the exclusive power to enforce § 3.

Although the concurring opinion of the liberal justices signals that they believe the majority gave exclusive enforcement power to Congress, Baude and Paulsen wrote, “at no point did the Court say that legislation under § 5 was constitutionally required in order for § 3 could have legal force.”

That’s a point of debate among experts, and other legal scholars PolitiFact spoke with said they believe the court’s ruling means Section 3 enforcement must come through Congress.

“I think it’s pretty clear from the majority that they think only Congress can do this,” Muller said.

Did Trump participate in riots?

Even after his campaign’s lawsuits challenging the results of the 2020 election failed and states certified their presidential nominees for President Joe Biden, Trump continued a campaign to prevent Congress from confirming Biden’s victory. His campaign assembled alternative, uncertified voter lists, and he pressured Vice President Mike Pence to reject the electoral votes of states he claimed were riddled with fraud.

After a mob of his supporters broke into the US Capitol and delayed vote certification on January 6, 2021, the House of Representatives charged Trump with “inciting sedition”. The Senate acquitted Trump of that charge.

But no federal court has found Trump engaged in sedition, and he has not been found guilty under the Sedition Act or any other federal law that would disqualify him from office under Section 3 of the 14th Amendment.

“Congress has not passed a statute regarding liability,” Muller said. “He has not been prosecuted under the Sedition Act, much less found guilty under the Sedition Act, which would disqualify him. So there are no existing statutory mechanisms enacted by Congress to determine his eligibility at this time.”

Trump’s staunchest Democratic critics has made clear they have no intention of trying to enforce Section 3 of the 14th Amendment to prevent him from taking office, and Republicans in Congress are eager to see him return to the White House. Under the procedures set out by the US Supreme Court, it is almost certain that Trump will not be blocked from taking office.