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Insurrection and Disqualification from Serving in Government
Andrew Hyman

Section three of the Fourteenth Amendment disqualifies insurrectionists from holding various positions in state and federal government, unless Congress decides by supermajority to let them serve.  Last month on this blog, we discussed the 1872 Amnesty Act, and whether it waived the disqualification only retrospectively, or prospectively too.  My view remains that the 1872 Act only provided amnesty retrospectively, and thus disqualification under section 3 of the Fourteenth Amendment remains a live possibility.  Indeed, there is currently litigation involving alleged insurrection and disqualification in at least two cases according to CNN.

This raises the question whether a state court can lawfully use a civil proceeding to disqualify and/or remove a person from federal office or from the ballot, as a substitute for holding a full criminal trial with its broader legal protections for alleged insurrectionists.  When Congress passed the Enforcement Act of 1870, section 14 of that Act did provide a civil mechanism for ejecting insurrectionists from state or federal office, called the writ of quo warranto.  This 1870 Act did not apply to members of Congress or state legislators, but even if it had, these provisions were repealed by Congress in 1948, according to a recent law review article by Myles Lynch (n. 365).  It therefore seems unlikely that federal law currently authorizes states to remove or disqualify federal officials using a method that Congress decided in 1948 is inappropriate for federal prosecutors to use.

Even as Congress put the brakes on civil disqualification in 1948, it revised and perpetuated criminal disqualification.  Sections two and three of the Confiscation Act of 1862, as amended in 1948, today still exist as 18 U.S.C. 2383.  In emergency conditions, perhaps Congress will again authorize the quo warranto procedure, but for now Congress rejects that procedure.  Congress has power under section five of the Fourteenth Amendment to enforce the Amendment, and that probably includes some power to determine types of enforcement that are inappropriate.  At the very least, a state court wishing to go against congressional policy in this regard ought to have very clear and specific authority under state law to do so.

As mentioned, even the 1870 Act rejected the quo warranto procedure for evicting insurrectionist legislators (both state and federal).  Daniel Hemel observes that "The exception likely derives from the fact that state legislatures—like the houses of Congress—have their own exclusion and expulsion procedures on which the drafters of the ... Act chose not to tread." That seems like a reasonable inference, and would again counsel against enforcing the Fourteenth Amendment by using quo warranto against state or federal legislators.