Two attorneys have argued that Congress has the authority to prevent President-elect Donald Trump from taking office by invoking the 14th Amendment.
Writing in The Hill, attorneys Evan Davis and David Schulte claimed that Congress could disqualify Trump on the grounds that he is constitutionally barred from holding office due to alleged “insurrection” activities.
The Hill is plotting an insurrection. pic.twitter.com/j1WssRMvoS
— Breanna Morello (@BreannaMorello) December 26, 2024
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The attorneys argue that the 14th Amendment prohibits anyone who has taken an oath to support the Constitution and subsequently engaged in insurrection from holding office.
They suggested that Congress could act when members gather to certify the Electoral College results on January 6.
Davis and Schulte outlined their interpretation of the law, stating that lawmakers have the authority to reject electoral votes if electors were “not lawfully certified” or if their votes were “not regularly given.”
They argued that voting for a candidate disqualified under the 14th Amendment constitutes an irregular vote.
“A vote for a candidate disqualified by the Constitution is plainly in accordance with the normal use of words ‘not regularly given,’” they wrote.
They compared disqualification for alleged insurrection to other constitutional requirements such as age, citizenship, and residency.
Mainstream media outlet The Hill is calling for an insurrection, demanding that Congress use the 14th Amendment to block Donald Trump from taking office in January.
They claim Congress has the authority to override the Electoral College and “restore power to democracy.”… pic.twitter.com/8v9yFXWv1f
— Shadow of Ezra (@ShadowofEzra) December 26, 2024
The attorneys explained the procedure for disputing electoral votes under the Electoral Count Act, which requires objections to be supported by 20 percent of members in each house of Congress.
If a majority in both houses sustains the objection, the disqualified votes are not counted, and the number of votes required to win is adjusted accordingly.
“If all votes for Trump were not counted, Kamala Harris would be elected president,” the attorneys wrote, suggesting that such a scenario, while unlikely, remains legally plausible.
This legal argument comes after a series of unsuccessful attempts to remove Trump from state ballots during the 2024 election cycle.
In February, the U.S. Supreme Court rejected Colorado’s effort to disqualify Trump from appearing on the state’s ballot, ruling that Congress would need to pass legislation to enforce Section 3 of the 14th Amendment.
BREAKING: Donald Trump responds to the Supreme Court oral arguments on removing him from the Colorado ballot via the 14th Amendment:
“Everyone of these cases you see comes out of the White House, it comes out of Biden. It’s election interference and it’s really very sad.” pic.twitter.com/8WspaoJtTF
— Charlie Kirk (@charliekirk11) February 8, 2024
Similar attempts in other states also failed.
Despite the legal debate, key Democratic leaders have indicated they do not intend to challenge Trump’s Electoral College victory.
Rep. Joe Morelle (D-NY) told Politico that he expects a “pretty normal transfer” of power, adding, “I think we will respect the wishes of the American people … in contrast to what happened January 6, 2021.”
Even Democrats who raised objections to Trump’s electors in 2017 have stated they will not repeat the process this year, according to Politico.
The argument by Davis and Schulte adds to ongoing discussions about the enforcement of the 14th Amendment’s disqualification clause.
However, the Supreme Court’s earlier ruling underscores the challenges of using the provision without additional legislative measures.
While the attorneys’ proposal has drawn attention, it faces significant political and legal hurdles.
Republicans hold a majority in the House of Representatives, making it highly unlikely that objections to Trump’s electors would gain the necessary support in Congress.
Additionally, any action taken under the 14th Amendment would likely prompt further legal challenges.
As the January 6 certification date approaches, Congress is expected to proceed with formalizing Trump’s Electoral College victory.
The legal arguments raised highlight ongoing tensions surrounding the 14th Amendment’s applicability but appear unlikely to alter the outcome of the presidential transition.
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