Posted on: May 12, 2021
Written by Cal Jillson, Author of American Government: Political Development and Institutional Change, 11th ed. and American Government: Constitutional Democracy Under Pressure, 2nd ed.
The Fourteenth Amendment and Insurrection
The storming of the Capitol on January 6, 2021, brought immediate calls for President Donald J.Trump’s impeachment, but most understood that he would soon be gone and that conviction by the Senate after the end of his term was unlikely. A few dusty scholars soon began pointing to Section 3 of the 14th Amendment as a potential mechanism for barring Trump from running again for the presidency in 2024. Many Americans know that the 14th Amendment, adopted in 1868, guaranteed citizenship, due process, and equal protection of the laws, to former slaves. Few knew that the more obscure Section 3 of the 14th Amendment declared that: “No person shall . . . hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath . . . 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.”
Most southern political and military officials before the Civil War had taken an oath to the U.S. Constitution, so when they resigned their offices and commissions to join the Confederacy and fight to defeat the Union and the Constitution, they were engaged in insurrection and rebellion. Barring these former confederates from office after the war was, of course, divisive, so only four years later, in 1872, President Grant and Congress passed the Amnesty Act which removed the prohibition from all but the most senior Confederate civilian and military officials. Between 1868 and 1872, the 14th Amendment’s Section 3 was deployed only a few times, but, as part of the Constitution, the Amnesty Act did not repeal it, just rendered it moot as to former Confederates. Section 3 was last invoked in 1919 to bar Victor Berger, a congressman-elect from Wisconsin, from taking his seat. Berger had served an earlier term in the House, 1911-1913, taken an oath to the Constitution, and then opposed entry into World War I. When elected again in 1919, he was charged with violating his oath and giving aid and comfort to the enemy. Berger was denied his seat under Section 3, though he did return to Congress for three terms from 1923 to 1929.
The application of Section 3 to President Trump’s conduct in relation to the January 6 Capitol riot was fairly direct. If January 6 was an insurrection and Trump had participated in it, he might be barred from holding federal office – say the presidency – in the future. Moreover, unlike impeachment, which requires two-thirds of the Senate to convict, a Section 3 congressional resolution requires only a majority vote in both houses. Finally, federal courts would be unlikely to overturn congressional action under Section 3 as the constitutional grant of authority is quite clear.
In the end, Democratic congressional leaders barely considered invoking Section 3. Was January 6 an insurrection? Was Trump directly involved? They were not sure. And seizing on obscure, rarely used, language, even if that language is in the Constitution, smacked of desperation. So they went with impeachment, knowing it was bound to fail.
The Twenty-Fifth Amendment
There was one more unsatisfactory option to impeachment. The 25th Amendment to the U.S. Constitution, adopted in 1967, offers a procedure for removing a president from office in Section 4. Unfortunately, Section 4 is a procedural and political mess that has never been used and is not likely ever to be used. Nonetheless, House Democrats passed a resolution on January 12, 2021, urging Vice President Mike Pence to invoke the 25th Amendment against Trump in the wake of the Capitol riot, but Pence demurred.
Sections 1 through 3 of the Amendment are non-controversial, simply stating that the Vice President succeeds to the presidency when that office falls open; that the President nominates a Vice President for approval by both houses of Congress when that office falls open; and that the President can transfer power temporarily to the Vice President when the president is indisposed. Section 4, on the other hand, describes an implausible process by which a Vice President and a majority of the cabinet can announce in writing to the President pro tempore of the Senate and the Speaker of the House that the President is unable to discharge his office, upon which announcement the Vice President assumes the presidency. However, the President has the right to send his own letter to the Senate and House leaders saying, “I’m fine.” The Vice President and cabinet then have four days to say, “No, you’re not,” in which case the Congress is charged to meet within 48 hours and within 21 days vote by a two-thirds margin that the president is unable to discharge his or her duties, or, failing that, the presumably very angry president remains in office. Anyone see any potential problems here? Did I mention that Section 4 of the 25th Amendment has never been used?