The Disqualification Clause is clear — let’s use it 

With less than a year to go, the 2024 election cycle is already filled with intrigue — third parties, voter suppression laws, simultaneous felony prosecutions and more. Now consider this scenario: 

The U.S. Supreme Court rules Donald Trump cannot be president again because he broke his first oath of office when he rebelled against the Constitution. Meantime, a 125-year-old clause in the Constitution purges Congress of more than half of its Republicans. Democrats and Independents use the opportunity for a historic collaboration to restore the people’s confidence in democracy. 

A purge on this historic scale may be implausible, but it’s theoretically possible because of Section 3 of the 14th Amendment to the United States Constitution, also known as the Disqualification Clause. It says public officials who aid or take part in an insurrection against the U.S. Constitution violate the oaths they took to support it. Section 3 disqualifies them from serving in state or federal government again.  

Taken literally, the clause applies not only to Trump but to scores and even hundreds of people in Congress, state legislatures and other public offices who aided or participated in his plot to defy the Constitution and remain in power after losing the 2020 election. Many plan to run for reelection next year. 

Voters and voter organizations have filed lawsuits in more than half the states to enforce the Disqualification Clause. The news media have faithfully reported on lower-court rulings so far, so I won’t rehash the details. But a few points deserve more attention: 

* On Jan. 6, 2021, 147 incumbent Republicans voted against certifying Joe Biden’s election victory. Following last year’s midterm election, 126 are still there. None have been held accountable for violating their oaths by participating in Trump’s efforts to thwart the peaceful transfer of power. 

Last December, a bipartisan group of 36 former House members called on the Office of Congressional Ethics to investigate members who allegedly played roles in Trump’s scheme. It hasn’t happened. Instead, several insurrectionists have risen to even more powerful positions in Congress, including Kevin McCarthy and Mike Johnson, the former and current Speakers of the House. 

* Judges in Minnesota, Michigan and Colorado have decided Trump can appear on their ballots next year, but they didn’t rule on whether to disqualify him from regaining the presidency. Parts of their rulings strain common sense and credulity and should not stand on appeal. 

For example, Colorado District Court Judge Sarah Wallace ruled that Section 3 might not apply to Trump; although it applies to “any officer” of the United States, it doesn’t specifically mention the president of the United States. She also noted that the clause applies to oaths to “support” the Constitution, but the presidential oath is to “preserve, protect and defend” it. 

In Michigan, the judge tried to toss the hot potato back to Congress. He said Trump’s eligibility to recapture the presidency is a political rather than legal question. But Section 3 presumably became “settled politics” 125 years ago when Congress added it to the Constitution. The ball is in the courts’ court now.  

* Courts have invoked Section 3 only eight times since 1868 and only once in the modern era. In September 2022, a New Mexico judge ordered a county commissioner removed from office for helping mobilize the mob that attacked the Capitol. Now, the Disqualification Clause should apply to traitors and miscreants at all levels of government. All legislators, judges and government executives take and are bound by oaths to support the U.S. Constitution. The Authors anticipated the need for antibodies in the document. 

We have rarely needed antibodies more than now. Elections are supposed to flush toxins out of the body politic, but the ability to vote is under attack, authoritarianism is rising, and over 1,200 hate and anti-government groups are active in the United States. And Donald Trump is not the kind of guy who will disappear to write his memoirs and build a library when he loses the election next year. 

With everybody accusing everybody else of weaponizing government, we don’t have to weaponize the Constitution. Section 3 is already there, apparently ready to be locked and loaded in democracy’s defense. We should dust it off and use it. 

William S. Becker is co-editor of and a contributor to “Democracy Unchained: How to Rebuild Government for the People,” and contributor to the just-published book, Democracy in a Hotter Time. He has served in several state and federal government roles, including executive assistant to the attorney general of Wisconsin. He is currently executive director of the Presidential Climate Action Project (PCAP), a nonpartisan climate policy think tank unaffiliated with the White House.