No, Trump Is Not ‘Constitutionally Disqualified’ From Returning to the White House Under the 14th Amendment

With President-elect Donald Trump set to be sworn into office January 20, some social media users have claimed he is disqualified from holding public office again. 

In August 2023, two conservative law professors wrote an article arguing that Trump should be disqualified under Section 3 of the 14th Amendment, known as the Insurrection Clause, for his role in trying to overturn the results of the 2020 election. And the Colorado Supreme Court took up a case seeking to keep Trump off the ballot in that state. The Colorado court did rule Trump ineligible, but the U.S. Supreme Court overturned Colorado’s decision in December 2023.

Laurence Tribe, a legal scholar and university professor emeritus at Harvard University, stated on social media that Trump is “constitutionally disqualified” from returning to the White House. “Not that anyone’s going to do anything about it, but it might be good to remember that, as an adjudicated oath-breaking insurrectionist, Mr.Trump is constitutionally disqualified under Sec. 3 of 14th Am from taking the oath as president on 1/20/25 unless 2/3 of both houses lift the disqualification,” he posted to Facebook, X, and Bluesky. 

While Tribe’s statement acknowledges that Trump will be inaugurated on January 20, his claim that Trump is disqualified by the Constitution from taking the oath is false and missing context. Trump is not disqualified from holding public office again. There is no clear legal process to disqualify Trump, or any other officeholder-elect, under Section 3.

Section 3 of the 14th Amendment states:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Tribe is correct that, if Trump were found to have engaged in insurrection or rebellion and subsequently disqualified under this section, he would be eligible to return to the presidency only if Congress removed the disqualification with a two-thirds vote in both chambers. But that would require Trump to have already been disqualified under the clause—which is not the case. 

In September 2023, six Colorado voters filed a lawsuit alleging Trump’s actions on January 6, 2021, amounted to an insurrection and should render the former president disqualified under the 14th Amendment. A Colorado district court judge first ruled that, while Trump did engage in insurrection, he would not be disqualified from the state’s primary ballot because 1) it was not clear that “officer of the United States” applied to the president, and 2) the amendment’s text is not clear on how to disqualify an alleged violator. “To be clear,” Colorado District Court Judge Sarah Wallace wrote in her ruling, “part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three.”

That decision was soon appealed to the Colorado Supreme Court, which reversed the district court’s ruling and ordered that Trump be removed from the GOP primary ballot. Colorado’s highest court agreed that Trump’s actions on January 6, 2021, were insurrectionary, but argued the court has the authority to enforce Section 3 of the 14th Amendment. “The district court erred by concluding that Section Three does not apply to the President,” the Colorado Supreme Court justices wrote in their 4-3 majority opinion. “We conclude that because President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act … to list President Trump as a candidate on the presidential primary ballot.”

The U.S. Supreme Court later rejected that legal reasoning upon appeal in Trump v. Anderson. In a unanimous decision issued in March 2024, the justices concluded that states could not independently enforce the 14th Amendment’s Disqualification Clause. Importantly, the Supreme Court did not determine whether Trump committed acts of insurrection, or whether Section 3 of the 14th Amendment is applicable to Trump or former presidents more broadly—only that states lack the authority to make such a determination themselves. 

If states cannot enforce the Disqualification Clause, then who can? 

According to previous Dispatch coverage on the Supreme Court’s ruling at the time:

So who can enforce the amendment? That was not unanimous. A five-justice majority held that only Congress could disqualify a candidate—and can do so only through legislation. Members of Congress could not, for example, disqualify him by refusing to certify election results. It also means that federal courts could not determine that Trump had engaged in an insurrection and disqualify him that way. In short, a majority of both the House and Senate would have to pass a law—which, let’s be clear, is not going to happen. 

The other four justices—coincidentally, all the women on the court—would have just decided that Colorado didn’t have the authority to disqualify Trump and not answered the question about who else might be able to, as their two separate concurring opinions outline.

A five-justice majority ruled that, because a process for disqualification under Section 3 is not outlined in constitutional text or federal law, it could be enforced only if Congress created a process to disqualify alleged violators of Section 3. 

Tribe told The Dispatch Fact Check that his social media statement “builds on” an article co-written with former U.S. Circuit Judge Michael Luttig that was published in The Atlantic 10 days after the Supreme Court’s ruling in Trump v. Anderson. In the piece, Tribe and Luttig critiqued the Supreme Court’s legal analysis in the case. But despite the pair’s objections to the decision from the nation’s highest court, the ruling stands nonetheless. 

“My tweet on Bluesky today builds on that piece but, given the length limits of the platform, obviously doesn’t elaborate,” Tribe told The Dispatch Fact Check. He explained further that he believed Trump to be an “adjudicated oath-breaking insurrectionist” because Colorado’s court system determined Trump engaged in insurrection on January 6, 2021, and that the Supreme Court merely ruled that states could not independently enforce the Disqualification Clause. 

Citing another statement he posted to BlueSky, though not Facebook or X, Tribe wrote: “The Colorado courts, after a week-long trial at which Trump had every opportunity to present witnesses and to cross-examine his challengers, rendered that verdict. And SCOTUS merely held that a state can’t remove a candidate from its primary on that basis, not that the verdict was flawed in any way.”

Because the U.S. Supreme Court did not rule on whether Trump’s actions on January 6, 2021, were insurrectionary—a question that Supreme Court justices did not examine in Trump v. Anderson—Tribe believes that Trump should be disqualified from holding office. Nonetheless, Tribe’s statement that Trump is “constitutionally disqualified” is false because there is no settled constitutional procedure to disqualify him. While there are avenues Congress could take toward disqualification—which itself would likely face a bevy of legal challenges and further court-wrangling—no such avenues have been pursued, never mind established.

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