Section 3 of the Fourteenth Amendment—also known as the Insurrection Clause—states,

“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. But Congress may by a vote of two-thirds of each House, remove such disability.” Section 5 gives Congress the power to enforce the Amendment.

This Amendment was ratified in 1868, and recently there has been significant debate over the applicability of this clause to the modern-day. After the failed impeachment trial that attempted to bar former President Donald Trump from holding public office again, some Americans are now considering if the Fourteenth Amendment can be invoked to attempt to achieve this goal in a different way.

Those who argue that, yes, Congress can unilaterally bar an individual from holding public office through the Fourteenth Amendment claim that the text should be interpreted explicitly as it is stated. Section 5 of the Fourteenth Amendment reads, “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” They argue that this gives Congress wide latitude to both decide if an individual committed insurrection or rebellion, as well as to then bar that individual from holding office again. This side also contends that giving Congress this power allows it to exercise a check against dangerous members of its own body, as well as officers in the executive and judicial branches. They claim this is a healthy part of a constitutional system built on checks and balances.

Those who argue that, no, Congress can’t unilaterally bar an individual from holding public office through the Fourteenth Amendment contend that to allow this would actually be a violation of the concept of separation of powers. They argue that Congress should not have both the authority to determine if insurrection was committed (a judicial power), as well as the power to then disbar someone from holding office. They claim that tyrannical governments generally feature leaders passing laws to prevent political opponents from ever holding office, an act that solidifies their iron grip on power. Finally, they also argue that to allow Congress to have this power would amount to the power to pass a “bill of attainder,” or a law that a legislature passes to declare a group or individuals guilty of a crime, usually without a trial. This side argues this would be a violation of Article 1, Section 9, Clause 3 of the Constitution, which states, “No Bill of Attainder…shall be passed” by Congress.

So, what do you think? Can Congress Unilaterally Bar an Individual From Holding Public Office Through the Fourteenth Amendment? Students can answer Yes, it can; No, it can’t; or a nuanced answer in-between!

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Note: Ideal Think the Vote responses include the following:      

• Address the question asked in a thoughtful and meaningful manner     
• Use cited facts and constitutional arguments when appropriate to support their answers      
• Are expressed in cohesive sentences and are free of distracting spelling, punctuation, and grammatical errors      
• They address counterarguments and opposing concerns in a respectful manner      
• They organize their answer in a manner that flows logically and reads clearly   

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