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A Q&A to a related question on Politics SE quoted the 14th Amendment of the Constitution that:

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. [...]

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

While that is true, it's also true that Congress cannot pass bills of attainder, declaring someone guilty of something and then punishing them.

So can Congress itself just declare someone guilty of insurrection and bar them from standing in elections, without that being considered a bill of attainder? Or do they have to delegate the finding of fact (in re insurrection) to another body, e.g. to the judiciary?

N.B. I'm aware that following a successful impeachment, Congress has declared some persons ineligible for office, e.g. judge Archbald in 1913. So maybe Congress can actually issue that kind of finding of fact outside an impeachment... because barring someone from standing for office might not be considered a punishment. (I vaguely recall reading that whether a measure is or isn't considered a punishment is fairly central to whether something is or isn't a bill of attainder.)

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    One theory is that Congress enforced this by enacting 18 USC 2383 which applies the ineligibility to anyone convicted of the corresponding felony. Jan 17 at 7:05
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    @NateEldredge: good point, but that (18 USC 2383) obviously requires a conviction by the judiciary.
    – Fizz
    Jan 17 at 7:07
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    Barring someone from federal employment has been held to constitute punishment under the attainder clause, and therefore unconstitutional, see US v. Lovett. I think declaring someone ineligible for office would be similarly unconstitutional in general, but in case of impeachment it's explicitly authorized by the Constitution. Jan 17 at 7:15
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    Famous law professor Alan Dershowitz argued "No" in his podcat today. I don't know if there is a way to get transcripts of these podcasts, so I can't perma-link to it. And, therefore, I can't put it in an answer. But short of an actual court decision, Dershowitz's opinion is as authoritative as it gets.
    – grovkin
    Jan 17 at 7:24
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    @grovkin the question is explicitly not about impeachment. It is asking about whether "congress can actually issue that kind of finding of fact outside an impeachment."
    – phoog
    Jan 19 at 20:00
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So can Congress itself just declare someone guilty of insurrection and bar them from standing in elections, without that being considered a bill of attainder?

No. Even if it isn't a bill of attainder, the Congress can't do that.

Or do they have to delegate the finding of fact (in re insurrection) to another body, e.g. to the judiciary?

The issue would be presented when someone ran for public office and their qualifications were challenged, and would be resolved by state and local election officials, subject to judicial review.

If that was not done, Congress could nonetheless refuse to recognize a state certification of someone's election on these grounds.

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  • However (regarding the last paragraph), if the office in question were an "office, civil or military, ... under any state" then the refusal of congress to recognize the state certification would be pointless.
    – phoog
    Jan 19 at 19:27
  • @phoog Sure. But in those cases, state constitutions would afford a state legislature similar authority in the case of a state office in most cases, and in other cases the judicial remedy and the election officer determination would still be present. I don't believe that Congress has any role to play in the case of a state office and an act of Congress wouldn't change that, because acts of Congress don't validly determine whether someone engaged in the prohibited conduct.
    – ohwilleke
    Jan 19 at 20:27
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It's very simple: There is no bill of attainder in operation here.

The law enforcing the provisions of the 14th Amendment began as one of the Enforcement Acts. Specifically, Amendment 14 §3 was enforced by §15 of the Enforcement Act 1870 (6 Stat. 140) which you can read on WikiSource and elsewhere.

§15 clearly explains that this is "upon conviction thereof before the circuit or district court of the United States" and applies to "any person" who satisfies the relevant conditions. This Act is clearly not a bill of attainder, and the judicial process that it sets out is not attainder.

One such case, before the circuit court in North Carolina, was United States v. Powell (27 F. Cas. 605, 65 N. C. 709 (1871)). It was a trial by jury, and here are a summary and the jury instructions.

A not-very-hypothetical public official who had "engaged" in insurrection (having taken an oath to support the Constitution) could be indicted and convicted under the Enforcement Act 1870 (as amended over the years) if xe attempted to, say, hold or exercise the duties of the office of President of the United States.

This is nothing to do with impeachment, or Senate trial upon impeachment, or the Houses of Congress ruling upon the qualifications of their own members (which power they have under a different part of the U.S. Constitution). This is conviction of a criminal offence under federal law.

Many commentaries on Amendement 14 are poor, and barely address §3. One that does address it in more than the usual detail is:

  • Thomas H. Calvert (1906). "Notes on the Constitution of the United States". In William Mark McKinney, Charles C. Moore, Peter Kemper: The Federal Statutes Annotated. Edward Thompson Company. pages 627 et seq.

Of course, it doesn't deal in the further (and arguably redundant) disability removals in the 1970s, but it does provide details such as what "engage" has been held to mean for example, and that state officials that have taken an oath to support the U.S. Constitution are included.

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can Congress itself just declare someone guilty of insurrection and bar them from standing in elections

No.

One point that bears underlining is that the 14th amendment provision doesn't apply to everyone who engages in insurrection or rebellion. It only applies to those who have "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." Therefore, many if not most of the people in the news these days for participating in the violence at the US capitol are not subject to being barred from elective office under the 14th amendment.

do they have to delegate the finding of fact (in re insurrection) to another body, e.g. to the judiciary?

The constitutional provision affects the qualifications for holding office. The fact finding lies with whatever body judges a given candidate's qualifications, which will be different for different offices. Congressional elections are a special case, because each house is the judge of its own elections. For other offices, congress would not be involved. The question could be put to the judiciary if there were a dispute about some person's qualifications in light of alleged past insurrection or rebellion.

I'm aware that following a successful impeachment, Congress has declared some persons ineligible for office

That is because the constitution explicitly provides for that disability as a punishment available for those who have been convicted on impeachment. (Note that it's not congress as a whole imposing the punishment; it's only the senate.) But in this case it's not a punishment, it's a constitutional ineligibility. Congress cannot trigger this ineligibility by making a finding of fact about someone's history of rebellion any more than they can trigger imprisonment by making a finding of fact that someone committed fraud.

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    Downvoting. It's an open question whether impeachment trial can be held for the sole purpose of disqualifying someone from holding office. Answering it definitively, without mentioning the fact that it is an open question, is not informative.
    – grovkin
    Jan 17 at 10:39
  • "That is because the constitution explicitly provides for that disability as a punishment available for those who have been convicted on impeachment." But the Constitution also explicitly provides (14th amendment, section 3) for the disability as a punishment for federal or state officials who have engaged in insurrection or rebellion against the Constitution. The question is how is it decided whether someone has engaged in insurrection or rebellion against the Constitution.
    – user102008
    Jan 17 at 19:11
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    @grovkin the only reason for mentioning impeachment is to point out that the "I'm aware..." sentence in the question is not relevant to the question being asked. This answer does not address the question of "whether [an] impeachment trial can be held for the sole purpose of disqualifying someone from holding office," much less make a definitive statement about it one way or the other.
    – phoog
    Jan 19 at 19:30
  • @user102008 the paragraph beginning "the constitutional provision..." addresses the question of how it is decided whether someone has engaged in insurrection or rebellion.
    – phoog
    Jan 19 at 19:32
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Reuters also has an article on this. After covering the less controversial issue of disqualification without impeachment (which coincides with phoog's analysis on that), it gets to:

WHAT ABOUT THE 14TH AMENDMENT?

Section 3 of the 14th Amendment provides an alternative path for disqualification.

The provision states that no person shall hold office if they have engaged in “insurrection or rebellion” against the United States. It was enacted following the Civil War to bar Confederates from holding public office.

Under congressional precedent, only a simple majority of both chambers is needed to invoke this penalty. Congress can later remove the disqualification, but only if two-thirds of both houses vote in favor of doing so.

In 1919, Congress used the 14th Amendment to block an elected official, Victor Berger, from assuming his seat in the House because he had actively opposed U.S. intervention in World War I.

The text of Section 3 of the 14th Amendment does not explain how it should be invoked.

Another section the 14th Amendment, Section 5, empowers Congress to enforce the entire amendment through “appropriate legislation.” Some scholars have interpreted this language to mean that a majority of both chambers of Congress could enact a law applying a ban to a particular president, like Trump.

“The 14th Amendment route is very unclear as to what it would take to get it rolling,” said [Brian] Kalt [a law professor at Michigan State University.] “I think it would require some combination of legislation and litigation.”

According to Wikipedia, Berger's actual conviction for espionage was overturned but his bar by Congress was not, although the reversal by SCOTUS came a bit late for Congress to consider it as Berger's term had practically ended by then. Basically he sat out his term 1918-1920, but after SCOTUS overturned his conviction (on January 31, 1921) and he was reelected again in 1922 (and in '24 and '26), I see no mention of Congress not seating him again, so I assume they relented.

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    Berger is about someone seeking a seat in the house, though. Can congress unilaterally declare that someone involved in breaking into the capitol is ineligible to be a state officer?
    – phoog
    Jan 17 at 8:12
  • @phoog: agreed it's a bad example for the more general question. They did seemingly, explicitly invoke the 14th in the discussions though... according to Wikipedia which has some quotes in the footnotes. But the House also gave up on that after his conviction was overturned by SCOTUS... so in some sense that also backs up your point that courts have to be involved in the findings of fact.
    – Fizz
    Jan 17 at 8:29
  • Downvoting. Another answer that doesn't make it explicitly clear that the issue is unresolved. This is a site dedicate to learning what the law happens to be... not what it likely is or what it should probably be. Anyone who reads an answer to this question, and comes off with an impression that this issue is resolved, would be misinformed.
    – grovkin
    Jan 17 at 10:44
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    Berger's conviction was overturned by SCOTUS because the judge (Kennesaw Mountain Landis) made a defamatory statement about the loyalty of German-Americans prior to Berger's trial, and then did not recuse himself from the case. The applicability of the 14th Amendment to the case was not even considered by SCOTUS.
    – DrSheldon
    Jan 18 at 4:21
  • @grovkin where's your answer then? Or, if you don't need to write your own answer because there's already one that points out that the issue is unresolved, which answer is that?
    – phoog
    Jan 19 at 19:37

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