The January 6 attack on the U.S. Capitol to disrupt the certification of the 2020 presidential election led to the first application of the “disqualification from public office” provision of the U.S. Constitution in more than a century. Earlier this year, in a case brought by Citizens for Responsibility and Ethics in Washington and others, a New Mexico court disqualified a county official from holding office based on his role in trespassing at the Capitol, and for participating in the “surrounding planning, mobilization, and incitement” which caused the insurrection. (The case is on appeal.) The disqualification clause contained in Section 3 of the 14th Amendment provides that public office holders who have taken an oath to support the U.S. Constitution and then engage in insurrection or rebellion against the United States, or who give aid or comfort to enemies of the United States, are barred from serving ever again in public office.

In this essay and an accompanying report, we build on the established collective understanding to analyze contemporary enforcement of the disqualification clause. Our analysis describes how the disqualification clause can currently be enforced.

The limited prior enforcement of the disqualification clause has led some to conclude that modern federal enforcement legislation is necessary to apply Section 3 against individuals involved in the January 6 attack on the Capitol. However, a combination of state, federal, and administrative mechanisms already provide a limited legal framework to enforce this provision, as a law review article completed shortly before the events of January 6, 2021 illustrates. This structure consists of processes to prevent a declared candidate for elected office from being placed on the ballot, prevent a disqualified candidate-elect from taking the oath of office, or remove a disqualified official from office (see p. 184 of the law review article).

States have their own processes that allow certain individuals to petition the state’s designated certifying body to find that a candidate is not qualified to hold office. Those processes vary by state, but they could be used to enforce the 14th Amendment disqualification of individuals who are running to hold elected state office; to serve as a presidential elector; to serve as the president or vice president; or to serve as a member of Congress.

While Congress has the exclusive constitutional authority to judge the qualifications of its members (which includes the power to refuse to seat members-elect), states have long used their own power over elections to prevent candidates from appearing on ballots if they are constitutionally ineligible to hold the office they seek (See, for example, Cawthorn v. Amalfi 35 F.4th 245 (4th Cir. 2022) (Wynn, J., concurring in the judgment)).

The so-called writ of quo warranto allows federal or state courts to hear challenges to a person’s right to hold public office and remove an unqualified individual from office. At the federal level, Congress codified quo warranto in the District of Columbia Code. Under the quo warranto law, the federal district court in Washington may issue a writ of quo warranto against anyone in the District who unlawfully holds “a public office of the United States.”

Like the federal government, some states have codified processes for individuals to petition courts for a writ of quo warranto (for instance, see Florida’s statute). The utilization of such a statute was, for example, how the state official was removed in New Mexico. However, even in states where the process has not been codified, it may still be possible to petition a court to remove a disqualified office holder under the common law writ of quo warranto. These processes can be used to remove disqualified elected state or local office holders and appointed state or local office holders.

Thus, as the accompanying report describes, there is already legal infrastructure in place to enforce Section 3 against many federal, state, and local officials. Congressional action is not necessary for enforcement actions utilizing these processes.

That said, certain statements in the final report by the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol would bolster any future enforcement action. Specifically, the Select Committee could and should make factual and legal findings that it has uncovered disqualifying conduct, and that Section 3 can and should be enforced through existing processes. We provide greater detail on those factual and legal findings in the report.

The Select Committee has, of course, already revealed compelling new evidence showing the involvement of the former president, several members of Congress, and scores of other individuals — who are covered by Section 3 of the 14th Amendment — in a coordinated effort to overturn the election. Some of this evidence points to planning an act of insurrection against the U.S. government, which would squarely trigger disqualification under Section 3. That evidence should now be gathered together with any other relevant proof in the Committee’s files and be presented in the form of a Watergate-style roadmap. That should be complemented by legal findings.

In sum, though there is no statute explicitly designed to enforce Section 3, there are multiple legal processes currently available to enforce the disqualification clause of the 14th Amendment. While these processes are viable without additional congressional action, a clear statement of the applicable law by the Committee could help settle open questions and provide guidance to the various decision-makers who would be involved in exercising or applying those existing legal processes at the local, state, or federal level.

IMAGE: Pro-Trump protesters gather in front of the U.S. Capitol Building on January 6, 2021 in Washington, DC. (Photo by Brent Stirton/Getty Images)