Former Republican President Donald Trump won back the White House on November 5, after battling his 2020 election defeat with baseless claims of widespread fraud.

Some social media users claimed that efforts by Trump, now president-elect, to overturn the results of the 2020 election and remain in office disqualified him from holding office again under the Constitution’s 14th Amendment American.

“Reminder: Donald Trump may be ineligible to be sworn in as president for inciting insurrection in violation of Section 3 of the 14th Amendment,” it reads. Discussion post said.

Trump’s potential 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’s decision in March that states do not have the power to disqualify candidates for federal office under this amendment. The United States Supreme Court, in Trump v. Anderson, ruled Colorado was unable to prevent Trump from participating in the election, overturning a Colorado Supreme Court ruling, but it fell short of deciding whether Trump engaged in an insurrection. THE Colorado Supreme Court Determined Trump engaged in insurrection.

Legal scholars who spoke to PolitiFact said the court’s decision means any application of the 14th Amendment to prevent Trump from the White House would have to go through Congress. Due to the current political makeup of Congress (Republicans control the House), this almost certainly won’t happen between now and January 20, when Trump is sworn in as the 47th president. (Unofficial 2024 election results show Republicans will have control of the Senate in the next Congress; control of the House is still undetermined as votes are still being counted.)

What is Section 3 of the 14th Amendment?

Section 3 of the 14th Amendment, adopted in the aftermath of the Civil War, was intended to prevent former Confederate officials from holding federal office. It specifies that a person who has already taken the oath of office and “engaged in insurrection or rebellion” against the United States cannot hold any office in the United States. A two-thirds vote of Congress can remove this disqualification.

Congress invoked the article for several potential candidates after the Civil War, when he refused to seat some members. And Congress passed the Implementation Act of 1870 to enforce this 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 to perform his duties under this article because he was convicted of participating in the uprising of January 6, 2021, one of the few times the article has been applied since the Reconstruction era. 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 applied?

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

In stating its opinion in this case, the Court’s majority stated that Congress had the authority to apply Section 3 of the 14th Amendment and that states could not apply it to federal office holders. The court pointed to Section 5 of the amendment, which states that Congress “shall have power to enforce, by appropriate legislation,” the provisions of the amendment.

The Court’s three liberal justices, along with conservative Trump-appointed 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 beyond this to dictate how Article 3 could otherwise be applied. be applied.

Because of this decision, most legal scholars agree that a disqualification of Trump under the 14th Amendment should come explicitly from Congress.

Legal experts said there was no reason to suspect that Congress would act to prevent Trump from holding office because of his efforts to overturn the 2020 election.

“I think whatever the legal argument is around this, in practice it’s just not going to happen, because obviously the 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 movement among Democrats to do it.”

The U.S. Supreme Court’s decision leaves ambiguity over whether its implementation requires specific legislation or 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 engaged in insurrection, but the Electoral count law does not authorize Congress to conduct a full investigation of the facts when it certifies votes. Regardless, the future makeup of Congress ensures that any attempt to deny Trump certification on these grounds will be futile.

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

Although the liberal justices’ concurring opinion indicates that they believe the majority has given Congress exclusive enforcement power, Baude and Paulsen wrote: “At no time has the Court said that legislation under of Article 5 was constitutionally required for Article 3 to have legal significance. force.”

It’s a point of debate among experts, and other legal scholars PolitiFact spoke with said they think the court’s decision means enforcement of Section 3 must go through Congress.

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

Did Trump engage in an insurrection?

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

After a mob of his supporters broke into the U.S. Capitol and delayed certification of the vote 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 engaged in insurrection, and he has not been convicted 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 accountability legislation,” Muller said. “He has not been prosecuted under the Insurrection Act, much less convicted under the Insurrection Act, which would disqualify him. So there is no statutory mechanism enacted by Congress to determine eligibility at this time.”

Trump’s most ardent Democratic critics have clearly indicated they have no plans to try to use Section 3 of the 14th Amendment to prevent him from taking office, and congressional Republicans are eager to see him return to the White House. Under procedures established by the U.S. Supreme Court, it is almost certain that Trump will not be prevented from taking office.