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It has been reported that at least one sitting state lawmaker participated in the storming of the US Capitol on January 6, 2021.

The 14th Amendment, section 3, says:

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.

So someone who engaged in "insurrection or rebellion against" the US Constitution cannot be a state legislator (or other type of federal or state official). My questions are:

  1. Could the storming of the US Capitol count as insurrection against the Constitution for the purposes of section 3 of the 14th Amendment?
  2. Does Congress need to pass a law to implement section 3 of the 14th Amendment before it can be invoked? or is it self-implementing?
  3. What would be the process to disqualify or remove a federal or state official under section 3 of the 14th Amendment? Who has standing to make the complaint? What court can the complaint be made in?
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  1. Could the storming of the US Capitol count as insurrection against the Constitution for the purposes of section 3 of the 14th Amendment?

It might. To the best of my knowledge, this provision has only been employed against people who were solders or civil officials of the Confederacy during the US Civil War. In that case there was no question of whether supporting the Confederacy constituted insurrection. Whether the Jan 6 even is an insurrection or merely or protest, or perhaps a trespass or other criminal intrusion is not settled.

  1. Does Congress need to pass a law to implement section 3 of the 14th Amendment before it can be invoked? or is it self-implementing?

No, this section is self-executing. No separate law is needed.

  1. What would be the process to disqualify or remove a federal or state official under section 3 of the 14th Amendment? Who has standing to make the complaint? What court can the complaint be made in?

That is not clear. The legislature in question could surely act to expel a member in such a case, if its own rules allow expulsion (Each house of Congress is granted that power explicitly in the Federal Constitution, but a 2/3rds vote to expel is needed.) Presumably other procedures could also be used, but I am not sure what they would be, or what procedures were used back in the 1860s.

It is not clear that a person would need to be criminally convicted before this could apply, but under Due process some sort of hearing would be required. If a person were expelled under the 14th, the expulsion might be challenged by a claim that the actions did not amount to "insurrection or rebellion", probably in a Federal Court, unless that had already been conclusively established in some proceeding.

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  • Expelling members from either house of congress typically takes 2/3rds vote from the house in question. – hszmv Jan 13 at 18:57
  • @hszmv Yes, that is the constitutional rule for both houses of Congress, it takes a 2/3rds vote to expel a member Did I say otherwise? I do not know what the rules are for the various state legislatures. Do all or most have a similar 2/3rds rule? – David Siegel Jan 13 at 19:28
  • Not sure. Generally, the overlook is that most state constitutions cribbed alot from the federal constitution as only a handful set up legislatures differently of any note.. – hszmv Jan 13 at 19:59
  • I'm curious how you reach the conclusion that Section 3 is self-executing. Here is an op-ed from a history professor who thinks that it is not. – Nate Eldredge Jan 17 at 6:51
  • @ Nate Eldredge That is an interesting op ed which i had missed. But I don't see much support for its assertion that Art 14 Sec 3 is not self-executing. Congress passed a law in 1870 to help enforce it, but if I am not mistaken former confederates were excluded under it prior to 1870, and not all after 1870 through that law. Victor Berger was expelled by the House, but not thru the 1870 law. 14/3 Uses words of direct prohibition, like many constitutional rules that are self-executing, indeed like the "make now law" of the first amendment. Perhaps a separate question. – David Siegel Jan 17 at 16:24
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No one has engaged in “insurrection or rebellion” ... yet

Or any other crime for that matter.

Under the presumption of innocence doctrine, you have not committed a crime unless and until you have been legally charged, tried and convicted. Once that happens, you have (subject to appeal) committed the crime and, if it is one that disqualified you from office, you are automatically disqualified.

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