Former Republican President Donald Trump won back the White House on Nov. 5 after contesting his 2020 election loss with baseless claims of widespread fraud.

Some social media users have claimed that efforts by Trump, now president-elect, to overturn the 2020 election results and remain in power disqualify him from running for office under the 14th Amendment to the U.S. Constitution.

“Reminder: Donald Trump may still not be sworn in as President for incitement of insurrection in violation of Section 3 of the 14th Amendment,” a Threads post read.

Trump’s possible disqualification under the 14th Amendment was the subject of a lawsuit in Colorado brought by a group of voters, which led to the U.S. Supreme Court ruling in March that states do not have the power to elect candidates under that amendment disqualify from federal office. The U.S. Supreme Court ruled in Trump v. Anderson that Colorado could not keep Trump from voting, reversing a decision by the Colorado Supreme Court, but it decided not to decide whether Trump was guilty of an insurrection. The Colorado Supreme Court ruled that Trump was involved in an insurrection.

Legal scholars who spoke to PolitiFact said the court’s ruling means any enforcement of the 14th Amendment to keep Trump out of the White House would have to come through Congress. Because of the current political makeup of Congress (Republicans control the House of Representatives) – that almost certainly won’t happen on January 20, when Trump will be sworn in as the 47th president. (Unofficial 2024 election results show that Republicans will have control of the Senate in the next Congress; control of the House of Representatives is still undetermined as votes are still being counted.)

What is Section 3 of the 14th Amendment?

Section 3 of the 14th Amendment, passed in the aftermath of the Civil War, was intended to prevent former Confederate officials from holding federal office. It said that a person who has previously taken an oath of office and is “engaged in an insurrection or rebellion” against the US cannot hold any office in the US. A two-thirds vote in Congress can overturn that disqualification.

Congress invoked the section for multiple future officeholders after the Civil War when it refused to seat certain members. And Congress passed the Enforcement Act of 1870 to enforce the provision. In 1872, Congress passed the Amnesty Act, which lifted the ban on most ex-Confederates.

A New Mexico court in 2023 disqualified a county commissioner from holding office under the section because he was convicted of participating in the Jan. 6, 2021, insurrection, one of the few times the section has been upheld since the era of the reconstruction. The U.S. Supreme Court upheld that ruling this year, reinforcing its ruling in the Colorado case that states have the authority to enforce the ban on state officials.

How can Article 3 be enforced?

A key question in the Colorado case ultimately decided by the U.S. Supreme Court in March was whether the disqualification from office under Section 3 was “self-executing” or whether it required some determination by Congress or the courts.

In laying out its opinion in that case, the court’s majority said Congress has the power to enforce Section 3 of the 14th Amendment, and states cannot enforce it against federal officeholders. The court pointed to Section 5 of the amendment, which stated that Congress “shall have power, by appropriate legislation,” to enforce the provisions of the amendment.

The Court’s three liberal justices, along with Trump-appointed conservative Justice Amy Coney Barrett, agreed with the underlying ruling that states cannot enforce Section 3. But they wrote separate opinions arguing that the majority should not have gone further to dictate how Section 3 could otherwise be implemented. are enforced.

Because of that ruling, most legal scholars agree that a disqualification for Trump under the 14th Amendment would have to come explicitly from Congress.

Legal scholars said there is no reason to suspect Congress will act to ban Trump from office over his efforts to overturn the 2020 election.

“I think regardless of the legal argument around it, in practice it’s just not going to happen because obviously Republicans are going to be completely against it,” said Ilya Somin, a law professor at George Mason University. “But I also don’t see much in the way of a movement among Democrats to do this.”

The U.S. Supreme Court’s ruling left unclear whether enforcement would require specific legislation, and whether Congress could refuse to certify Trump’s election on Jan. 6, 2025, legal experts said.

Derek Muller, a law professor at the University of Notre Dame, said a member of Congress could object to electoral votes for Trump on the grounds that he was involved in an insurrection, but the Electoral Count Act does not give Congress the authority to full investigation into the facts to take place when they declare the votes. Be that as it may, the future composition of Congress ensures that any efforts to deny Trump’s certification on those grounds will be futile.

Some scholars disagree that the court’s ruling means Congress has exclusive authority to enforce the section. Law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas, who published a paper in 2024 arguing that Trump was disqualified from office under Section 3 of the 14th Amendment, wrote in a forthcoming article for the Harvard Law Review that they do not think the court’s ruling means Congress has exclusive power to enforce Section 3.

Although the liberal justices’ concurring opinion indicates that in their view the majority has given exclusive enforcement power to Congress, Baude and Paulsen wrote, “at no point did the Court say that legislation under Section 5 was constitutionally required to enforce Section 3 legal powers. power.”

That’s a point of contention among experts, and other legal scholars PolitiFact spoke to said they believe the court’s ruling means enforcement of Section 3 must come through Congress.

“I think it’s pretty clear to the majority that they think that only Congress is the one that can do this,” Müller said.

Did Trump participate in an insurrection?

Even after his campaign’s lawsuits challenging the results of the 2020 election failed and states certified their presidential electors for President Joe Biden, Trump continued a campaign to prevent Congress from certifying Biden’s victory. His campaign collected alternative, uncertified voter rolls, and he pressured Vice President Mike Pence to reject the electoral votes of states he claimed were rife with fraud.

After a mob of his supporters breached the U.S. Capitol and delayed vote certification on January 6, 2021, the House of Representatives impeached Trump for “incitement of insurrection.” The Senate acquitted Trump of that charge.

But no federal court has found Trump guilty of insurrection, and he has not been found guilty under the Insurrection Act or any other federal law that would disqualify him from office under Section 3 of the 14th Amendment.

“Congress has not passed a liability statute,” Muller said. ‘He has not been prosecuted under the Insurrection Act, let alone found guilty under the Insurrection Act, which would disqualify him. “So there are no existing legal mechanisms established by Congress at this time to determine eligibility.”

Trump’s most ardent Democratic critics have made clear that they have no intention of enforcing Section 3 of the 14th Amendment to prevent him from coming to power, and Republicans in Congress are eager to see him return to White House. Under the procedures set out by the US Supreme Court, it is almost certain that Trump will not be barred from taking office.