Insurrection clause cases are up for grabs 

In 1919 and 1921, the House of Representatives refused to seat Rep.-elect Victor Beger, an Austrian-born socialist from Milwaukee and newspaper editor, on grounds he was in violation of section 3 of the 14th Amendment. That provision bars persons from holding office if they were previously sworn to uphold the Constitution and subsequently engaged in insurrection or rebellion against the U.S., or gave aid and comfort to the enemy.  

Berger, in his newspaper articles, sympathized with the German cause during World War I. He was convicted of sedition in February 1919 under the 1917 Espionage Act for giving aid and comfort to the enemy and sentenced to 20-years in prison.

In November 1919, the House, by resolution, refused to accept his credentials and declared him ineligible to take his seat (as it did again in 1921). However, in 1921 the Supreme Court reversed his conviction on grounds of “judicial bias.” He was subsequently elected to three consecutive House terms in the 1920s.

Berger was the first person against whom the “insurrection clause” was invoked by Congress since the Reconstruction Era when it was incorporated as part of the 14th Amendment in 1868. It was revoked for most ex-Confederates by the 1872 Amnesty Act.

The revival of the section today originated in states in which suits were  brought to exclude former President Trump from access to presidential primary ballots due to his role in the Jan. 6 attack on the Capitol. Decisions in both Colorado and Maine have ruled that he be excluded, while Michigan and Minnesota have ruled the other way. Trump directly appealed the Colorado decision to the U.S. Supreme Court which accepted it and has set Feb. 8 to hear oral arguments.

The Trump legal team has loaded its briefs with multiple reasons why the former president cannot be denied ballot access. There is one argument, however, that has received little attention but that may appeal to the Supreme Court’s inclination to simplify and expedite its decision. That argument goes to the plain meaning of section 3 which specifically forbids affected persons from holding the offices referred to. It does not bar them from running for those offices.

The Colorado Supreme Court’s ruling hangs primarily on the premise that section 3 is another “qualification” for the presidency that should be taken into account in addition to the citizenship, age and residency requirements in Article II. It concluded that Trump, having previously sworn to uphold the Constitution and then having engaged in the Jan. 6 insurrection, does not qualify to be on the primary ballot.

However, in examining the Constitution, the three Article II qualifications are clearly framed, twice by the term “eligible.” “No person except a natural born citizen…shall be eligible to the Office of President, neither shall any person be eligible to that Office who shall not have attained the age of thirty-five years and been fourteen years a resident of the United States.” These are explicit pre-requisites for running for the office.

Section 3, on the other hand, speaks to the current status of persons who have run for office and are either currently serving or were just elected or appointed: they shall not “be a senator or representative in congress,” etc., “or hold any office, civil or military,” etc. It is not a qualification for running for the office but rather a disqualification from holding the office (which is why it is also referred to as the “disqualification clause”).

If section 3 only bans someone from holding office who has already been elected to it, how is it implemented practically given the short duration between the election and being sworn into office? Unlike Congress, where a contested member-elect is asked to step aside from being sworn in pending an investigation and then a House vote on whether to seat them, the presidency is quite another matter. The mechanics must either be determined by Congress through special rules adopted on the day of the electoral vote count; or, in the alternative, by Congress deciding that section 3 does not apply and declaring the winner of the electoral vote (after all challenges have been disposed of). 

If the plain meaning interpretation of section 3 is accepted by the Supreme Court and ruled on accordingly, it should also avoid new challenges being filed over access to general election ballots. However, the practical details for resolving any related conflict could be difficult for Congress to flesh-out.

It was Henry David Thoreau who urged, “Simplify, simplify.”  If he really meant it, though, why did he repeat himself? I suspect it may have been because he knew things were more complicated than they initially appeared. 

Don Wolfensberger is a 28-year staff veteran of Congress, culminating as minority staff director of the House Rules Committee, and then as chief-of-staff of the full committee.  He is author of, “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress: From Fair Play to Power Plays” (2018).  The views expressed are solely his own.