Legal Sidebari

Disqualification of a Candidate for the
Presidency, Part I: Section 3 of the Fourteenth
Amendment as It Applies to the Presidency
Updated January 9, 2024
On January 5, 2024, the Supreme Court agreed to hear former President Donald Trump’s challenge to the
Colorado Supreme Court’s decision in Anderson v. Griswold that he is disqualified from future office
under Section 3 of the Fourteenth Amendment (Section 3). The Court stated that the question presented is:
Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024
presidential primary ballot?
On December 19, 2023, the Colorado Supreme Court became the first court to hold that Trump is
ineligible to appear on the ballot because he is constitutionally disqualified from holding the office of the
President, and the court directed the Colorado secretary of state to exclude the former President’s name
from the state’s 2024 presidential primary ballot. The state court initially directed the former President to
be excluded from the state’s 2024 presidential primary ballot. After the Supreme Court agreed to review
the case, the Colorado secretary of state announced that Mr. Trump would be listed on the primary ballot
but said the Supreme Court’s decision may determine whether votes cast for him are ultimately counted.
In a similar case, the secretary of state of Maine determined on December 28, 2023, that Trump is
ineligible to appear on that state’s ballot pursuant to Section 3 based on much of the same evidence
reviewed in the Colorado case.
Numerous other lawsuits and administrative actions across the country have also sought or are seeking to
prevent former President Donald Trump from appearing on state ballots for the upcoming presidential
elections. In particular, lawsuits filed in both state and federal courts are requesting that various
secretaries of state exclude the former President from the states’ ballots for the upcoming presidential
primary and general elections. Other challengers are asking state secretaries of states to take action under
state law to refuse to place Trump on the ballot. Challengers allege that Trump sought to impede the
congressional certification of the 2020 electoral college vote on January 6, 2021, by, among other things,
urging his supporters to travel to Washington, D.C., to protest the count at the U.S. Capitol in furtherance
of his alleged effort to persuade then-Vice President Mike Pence to reject electoral votes from swing
states where Joe Biden had prevailed. These proponents argue that these efforts amount to “engag[ing] in
Congressional Research Service
https://crsreports.congress.gov
LSB11094
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

---

Congressional Research Service
2
insurrection” within the meaning of Section 3. Challengers contend that the former President is therefore
disqualified as a candidate for the presidency.
This Sidebar discusses the Colorado case as well as the Maine ballot determination, which Trump has
appealed to a Maine county superior court. Part 2 of this Sidebar series discusses eligibility requirements
for a candidate to be placed on the ballot for the presidency and procedures for challenges based on the
application of Section 3 to the 2024 presidential elections, including select judicial decisions on the
matter. For further background on Section 3, see this Legal Sidebar and this Legal Sidebar.
The Disqualification Clause
Section 3 of the Fourteenth Amendment provides:
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.
Section 3 disqualification appears to apply to any covered person who has taken an oath to support the
Constitution of the United States and thereafter either (1) engages in insurrection or rebellion against the
Constitution of the United States or (2) gives aid or comfort to the enemies of the Constitution of the
United States, unless a supermajority of Congress “removes such disability.” The disability to hold office
appears to disqualify offenders from Congress as well as from other federal or state governmental offices.
Concerning former President Trump’s eligibility to be President again, questions arise as to, first, whether
he is a covered person—that is, one who took an oath to support the Constitution as an “officer of the
United States”—and second, whether the presidency is an “office, civil or military, under the United
States.” Scholars have weighed in on both issues, with some arguing that these terms are legal terms of art
that likely exclude the office of the President and others arguing that the plain text, read in the context of
the time, includes the office of the President.
The Presidency as an “Office Under the United States”
Those who argue that the presidency is a civil office under the United States within the meaning of the
Disqualification Clause view it as a matter of the plain text of the Constitution bolstered by
contemporaneous opinions of the Attorney General. Proponents of this view argue:
The Constitution refers to the President holding an “Office” 25 times, including in the Oath of Office
Clause. See U.S. Const. art. I, § 3, art. II, §§ 1, 4, amends. XII, XXII, XV. Because that “Office” is
within the federal executive branch, it is necessarily an office “of the United States.” And one who
holds an “office” is an “officer.”
Those opposed argue that the presidency is not a civil office under the United States because the drafters
did not expressly include the presidency in a list of “the positions insurrectionists are disqualified from
holding in descending order from the highest positions they cover (senators and representatives) to the
lowest (officers of the states).” They appear to reason that the presidency would have been at the top of
the list rather than included as a civil office ranking less important apparently than even members of the
Electoral College.
Those who view the President as being exempt from disqualification argue that the drafters of the
Fourteenth Amendment would not have relegated the presidency to a catch-all phrase describing federal

---

Congressional Research Service
3
civil officers while specifically identifying the federal elected officials (Senators, Representatives, and
Electoral College members). They suggest that this conclusion is bolstered by an interpretive canon that
presumes that the expression of one thing in a list of like things implies the intentional exclusion of
others. It is arguable that congressional seats and Electoral College slots might not have been considered
civil or military offices and that, in any event, Senators at the time (and some electors) were chosen by
state legislatures rather than elected by popular vote, which seems to cut against the assumption that the
drafters categorized as “like things” elected offices as a separate group from civil and military offices at
the federal (but not state) level.
One scholar argues that legislative history buttresses the conclusion that the President was omitted
purposefully. An earlier proposed amendment mentioned the President and Vice President, arguably
suggesting that the omission of the language in the final amendment could be read to indicate that the
drafters intended to omit the office of the presidency from the offices subject to disqualification.
The reference to the earlier draft appears to be a separate proposal introduced by Representative Samuel
McKee in February 1866, which was referred to the House Judiciary Committee but apparently not voted
on in Congress or taken up by the Joint Committee on Reconstruction, which drafted the Fourteenth
Amendment. The McKee proposal stated:
No person shall be qualified or shall hold the office of President or vice president of the United
States, Senator or Representative in the national congress, or any office now held under appointment
from the President of the United States, and requiring the confirmation of the Senate, who has been
or shall hereafter be engaged in any armed conspiracy or rebellion against the government of the
United States, or has held or shall hereafter hold any office, either civil or military, under any
pretended government or conspiracy set up within the same, or who has voluntarily aided, or who
shall hereafter voluntarily aid, abet or encourage any conspiracy or rebellion against the Government
of the United States.
The text of the proposal does not appear in the Journal of the Joint Committee on Reconstruction. The
first provision regarding disqualification that the Joint Committee appears to have considered was a
proviso to a proposed constitutional amendment submitted by Representative Thaddeus Stevens on April
21, 1866, which stated:
That no person who, having been officer in the Army or Navy of the United States, or having been
a member of the Thirty-sixth Congress, or of the Cabinet, in the year one thousand eight hundred
and sixty, took part in the late insurrection, shall be eligible to either branch of the national
Legislature until after the fourth day of July, thousand eight hundred and seventy-six.
This proposed amendment was withdrawn on April 23, 1866, and replaced with another, which contained
the following proposal:
Provided, until after the 4th day July, 1876, no person shall be eligible to either branch of the national
legislature included any the classes, namely:
First: Persons who, having been officers of the Army or Navy of the United States, or having been
members of the Thirty-sixth Congress, or having held, in the year 1860, seats in the cabinet, or
judicial officers under the United States, did afterward take part in the late insurrection.
Second. Persons who have been civil or diplomatic officers of the so-called Confederate
Government, or officers of the army or navy of said government above the rank of colonel in the
army and of lieutenant in the navy.
Third. Persons in regard to whom it shall appear that they have treated officers or soldiers or sailors
of the United States, whatever race or color, captured during the late civil war, otherwise than
lawfully as prisoners of war.
Fourth. Persons with regard to whom it shall appear that they are disloyal.

---

Congressional Research Service
4
The Joint Committee approved the amendment with the proviso after some revision concerning those to
be held ineligible but then voted to reconsider. On April 28, 1866, Representative George Boutwell
moved to add the essence of the proviso on ineligibility as a section of the constitutional amendment
itself, but this effort was rejected. At that point, the text of what became Section 3 of the Joint
Committee’s resolution was adopted. The proviso on ineligibility was then further amended with respect
to the classes of persons to be excluded. The reference to offices those classes of persons were ineligible
to hold was amended to remove the sunset and to replace “either branch of the national legislature” with
“any office under the Government of the United States.” The proviso was submitted to Congress as a bill
rather than a constitutional amendment (H.R. 544 and S. 293) but did not receive a vote.
Section 3 of the Fourteenth Amendment as reported by the Joint Committee was also an effort to prevent
former Confederates from attaining excessive influence in government, but it took a different approach.
As reported, it stated:
Until the 4th day of July, in the year 1870, all persons who voluntarily adhered to the late
insurrection, giving it aid and comfort, shall be excluded from the right to vote for Representatives
in Congress and for electors for President and Vice President of the United States.
There was much opposition to the proposed Section 3, which some lawmakers thought too harsh and
others too lenient. The disqualification provision narrowly survived a motion to strike in the House. When
the Fourteenth Amendment was taken up, it became apparent that many Senators opposed it for various
reasons, including opposition to Section 3. Senate Republicans sought to postpone further consideration
and met in caucus to resolve differences. They appointed a committee of their caucus members who had
served on the Joint Committee to redraft the amendment. One of the caucus members, Senator Jacob
Howard, had expressed approval for a substitute Section 3 proposed by Senator Daniel Clark:
No person shall be a Senator or Representative in Congress, or be permitted to hold any office under
the Government of the United States, who, having previously taken an oath to support the
Constitution thereof, shall have voluntarily engaged in any insurrection or rebellion against the
United States, or given aid or comfort thereto.
When the Senate returned to the constitutional amendment, Senator Reverdy Johnson successfully moved
to strike Section 3 from the proposed amendment as reported, after which Senator Howard introduced the
language that had been worked out in the caucus committee, reflecting Section 3 as finally adopted.
During Senate debate on the final version of the amendment, Senator Johnson commented that Section 3
“did not go far enough” insofar as it permitted rebels to serve in the highest offices of the land:
I do not see but that any one of these gentlemen may be elected President or Vice President of the
United States, and why did you omit to exclude them?
Senator Lot Morrill, a Republican Senator who had not served on the Joint Committee and who was
therefore not directly involved in the drafting, interjected:
Let me call the Senator’s attention to the words “or hold any office, civil or military, under the
United States.”
Senator Johnson responded, “Perhaps I am wrong as to the exclusion from the Presidency; no doubt I am;
but I was misled by noticing the specific exclusion in the case of Senators and Representatives.” Senator
Johnson had participated on the Joint Committee but as a Democrat and did not participate in the drafting
of the final version of Section 3. Members of the drafting caucus who were present did not intervene to
explain whether the presidency was a covered position or not.
After the Senate approved the proposed Fourteenth Amendment, the House adopted it on June 13, 1866.
This drafting history may undercut the inference that Congress deliberately deleted mention of the
presidency from an earlier draft and therefore consciously intended to exclude the presidency from the

---

Congressional Research Service
5
disqualification. Although it is possible that the Senate Republican caucus committee considered
Representative McKee’s separate proposal when drafting the final version of Section 3, there appears to
be no direct evidence to support that assumption. Rather, it seems that the final version of Section 3
emerged as an edited version of Senator Clark’s proposal described above. There do not appear to be any
records of the caucus deliberations.
The President as an “Officer of the United States”
Whether Trump is subject to disqualification under Section 3 depends on whether the President is an
“officer of the United States” and whether he took an “oath to support the Constitution.”
Officer of the United States
Some argue that the President is an “officer of the United States” under the plain meaning of the phrase at
the time of enactment and point to the numerous references in the Constitution to the presidency as an
“office” to support this conclusion. Opponents counter that the phrase is a term of art and must be
understood in light of the text of the Constitution, which they assert points to an understanding that
officers of the United States are officials appointed pursuant to the Appointments Clause, arguably
excluding the President, who is elected and does not appoint himself. Those who believe the President is
not an “officer of the United States” also emphasize the Commissions Clause, which provides that the
President “shall Commission all the Officers of the United States.” They find further support in the
Impeachment Clause, which explicitly applies to the “President, Vice President and all civil Officers of
the United States,” possibly suggesting that the President is not included as a “civil Officer of the United
States” whose oath of office would subject him to possible disqualification.
. . . Who Swore an Oath to Support the Constitution
Article VI requires that all legislative, judicial, and executive officers—both federal and state—take an
oath swearing or affirming to support the Constitution. If the reference in Section 3 to taking an oath to
support the Constitution of the United States is interpreted to cover the class of persons required to take
the oath under Article VI, the President of the United States could be exempted. The presidential oath
prescribed verbatim in Article II is different from the oath required in less specific terms for all other
governmental offices, federal and state. The presidential oath does not include the word support, and it is
suggested that taking it might not bring a President within the ambit of Section 3. On the other hand, the
fact that the presidential oath is spelled out in Article II does not necessarily mean that it is not also an
oath within the meaning of Article VI or Section 3. It may seem anomalous to conclude that the
presidential oath could exclude the President from the ambit of Article VI’s prohibition on religious tests
(assuming the religious test applies only to those required to take the oath and the applicability of who is
required to take such oath is not broadened by the inclusion of “public trust” along with “any office”) as
well as from the disqualification provisions under Section 3 of the Fourteenth Amendment but that the
Vice President would remain subject to both provisions.
Colorado: Anderson v. Griswold
Anderson v. Griswold is, to date, the only case to address the merits of the disqualification claim as to the
former President. Six Colorado voters petitioned the court to direct the Colorado secretary of state to
prevent Trump from appearing on the primary or any subsequent ballot as a candidate for President in
2024. The former President moved to dismiss the case on a number of grounds, including freedom of
speech, non-justiciability, the non-self-executing nature of Section 3, preemption of the field by Congress,
and inapplicability of Section 3 to the office of the President and with respect to the violence at the

---

Congressional Research Service
6
Capitol on January 6, 2021. The Colorado Republican State Central Committee intervened on behalf of
the former President, who also moved to intervene after he was dropped as respondent. On November 17,
2023, following a five-day trial hearing evidence, a state district court held that then-President Trump
engaged in insurrection as defined under Section 3 but that Section 3 does not apply to Trump or the
office of President and does not disqualify his name from appearing on the ballot. Both sides appealed to
the Colorado Supreme Court.
On December 19, 2023, by a 4-3 vote, the Colorado Supreme Court partially affirmed and partially
reversed the district court. The court decided that Section 3 is judicially enforceable even without
implementing legislation from Congress and that judicial review of Trump’s eligibility for office was not
precluded by the political question doctrine. The court held that Trump is disqualified under Section 3
from holding the office of President and that the Colorado secretary of state could not include his name on
the 2024 presidential primary ballot. However, the court stayed its decision pending Supreme Court
review, and Trump’s name will appear on the primary ballot. (On January 3, 2024, Trump filed a petition
for review with the Supreme Court. The Colorado Republican State Central Committee filed a petition for
certiorari with the Court on December 27, 2023, which remains pending before the Court.)
The court found that the district court did not err in determining that the 2021 siege of the Capitol
constituted an insurrection, concluding:
In short, the record amply established that the events of January 6 constituted a concerted and public
use of force or threat of force by a group of people to hinder or prevent the U.S. government from
taking the actions necessary to accomplish the peaceful transfer of power in this country. Under any
viable definition, this constituted an insurrection.
The court then examined whether the evidence supported the contention that Trump had “engaged” in the
insurrection. Based on contemporaneous dictionary definitions, the 1867 Attorney General opinions on
the Reconstruction Acts (which had incorporated Section 3 even prior to the ratification of the Fourteenth
Amendment), relevant case law, and evidence of actions Trump took to “lay[] the groundwork for a claim
that the election was rigged” and then “urging his supporters to travel to Washington, D.C. on January 6”
as part of a plan to have Congress “certify a slate of fake electors supporting President Trump or he could
return the slates to the states for further proceedings,” the court concluded, after reiterating the largely
undisputed evidence before it of the events that ensued, that
President Trump’s direct and express efforts, over several months, exhorting his supporters to march
to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this
country were indisputably overt and voluntary. Moreover, the evidence amply showed that President
Trump undertook all these actions to aid and further a common unlawful purpose that he himself
conceived and set in motion: prevent Congress from certifying the 2020 presidential election and
stop the peaceful transfer of power.
The court reversed the lower court to find that Section 3 applies to the former President in this case
because, based on a textual analysis of Section 3, the President is an officer of the United States and the
presidency constitutes an office under the United States. The court expressed a preference for “a phrase’s
normal and ordinary usage over ‘secret or technical meanings that would not have been known to
ordinary citizens in the founding generation.’” The court did not accept the implication the lower court
relied on to conclude that the inclusion of the President in constitutional provisions that also mention
“officers of the United States” means its omission is always a deliberate exclusion, observing that the
Constitution refers to the “office of the President” twenty-five times. The court concluded that the
ordinary usage, contemporary meaning at the time of the constitutional amendment’s drafting and
ratification, and the structure and purpose of Section 3 supported the inclusion of the President among
officers of the United States. The court also viewed the President as an “executive ... Officer[]’ of the
United States under Article VI, albeit one for whom a more specific oath is prescribed,” rejecting the

---

Congressional Research Service
7
contention that the presidential oath precludes disqualification of one who took it and no other Article VI
oath.
Rather than viewing the presidency as intentionally omitted from a list of federal elected offices, as the
lower court had, the Colorado Supreme Court interpreted Section 3 as listing no specific offices at all,
inasmuch as, in its view, the positions of Senator, Representative, and presidential elector are not
considered “offices” in the Constitution. The court mentioned that the Impeachment Clause permits the
Senate to disqualify convicted officials “to hold and enjoy any Office of honor, Trust or Profit under the
United States.” The court commented that “if the Presidency is not an ‘office ... under the United States,’
then anyone impeached—including a President—could nonetheless go on to serve as President. This
reading is nonsensical.” The court also observed that an understanding that the presidency is not an office
under the United States would permit the President to serve simultaneously in Congress despite the
Incompatibility Clause and that the Emoluments Clause would “exempt the nation’s chief diplomat from
these protections against foreign influence,” which would be at odds with historical practice.
In his petition filed with the U.S. Supreme Court on January 3, 2024, former President Trump presented
numerous challenges to the Colorado decision, including arguing that (1) the matter is a political question
that the Constitution leaves to Congress to decide; (2) Section 3 does not apply to his conduct as
President; (3) he did not engage in insurrection; (4) Colorado did not follow its own election laws; and (5)
Section 3 prevents disqualified persons from holding office but not from running for office.
The Court scheduled oral arguments for February 8, 2024.
The Maine Ballot Challenge
On December 28, 2023, Maine’s secretary of state determined that former President Trump is disqualified
in accordance with Section 3 despite his filing statement averring that he is qualified to hold the office of
President. The secretary further determined that his allegations that he won the office for the second time
in 2020 did not disqualify him under the Twenty-Second Amendment. Like the Colorado court in
Anderson, the Maine secretary of state agreed that drafting history and common understanding of the
terms at the time confirm that the President is an Officer of the United States and that the presidency is an
“office ... under the United States.” She also found that Section 3, like other portions of the Fourteenth
Amendment, is self-executing, emphasizing, among other things, that Congress would not have needed to
remove the disability via issuing amnesty if prior action had been necessary to activate it. After finding
that the parties did not meaningfully dispute the events of January 6, 2021, she recounted the events and
concluded that the historical definition of insurrection consisting of “a public use of violence by a group
of people to hinder or prevent the execution of the Constitution” encompassed the events of January 6,
2021. She wrote:
It ... cannot reasonably be disputed that the rioters were organized behind a common purpose. That
purpose is evident not only from the context, ... but also from the very chants and recitations of the
rioters themselves. They were present to “stop the steal,” i.e., prevent by force the certification of
the results of the 2020 presidential election that was scheduled to occur in the halls of Congress that
afternoon.
She further concluded that the events also met the more stringent definition Trump had proffered, which
was that an “insurrection must be ‘violent enough, potent enough, long enough, and organized enough to
be considered a significant step on the way to rebellion.” She also agreed with the challengers’ expert that
a contemporaneous understanding of engaging in insurrection included any “official action ‘in
furtherance of the common unlawful purpose’ or ‘any overt act for the purpose of promoting the
rebellion,’ including ‘incit[ing] others’ to act accordingly ‘by speech or by writing’” and that this standard
was met.

---

Congressional Research Service
8
The former President has challenged the decision with the Maine Superior Court, alleging bias on the part
of the decisionmaker, lack of due process, absence of authority for the decision under Maine law, errors of
law, and arbitrary and capricious actions, all making his exclusion from the ballot illegal. The case
remains pending.
Author Information

Jennifer K. Elsea
Juria L. Jones
Legislative Attorney
Section Research Manager


L. Paige Whitaker

Legislative Attorney




Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB11094 · VERSION 4 · UPDATED

---