Implementing Legislation for Section Three

The parties and amici have submitted briefs addressing whether implementing legislation was required for Section 3.

After passed the 14th Amendment in 1866,

A key issue in Trump v. Anderson is whether implementing legislation is required before a federal or state officer can be disqualified pursuant to the provisions of Section 3 of the 14th Amendment (“Section 3”). The Colorado Supreme Court concluded:

Congress does not need to pass implementing legislation for Section Three’s disqualification provision to attach, and Section Three is, in that sense, self-executing.

Briefs of the parties and amici curiae continue to debate the point.

Congress, however, acted as if Section 3 was self-implementing. After passing the 14th Amendment in 1866, Congress proceeded with its next steps for requiring a new oath applicable to officials who have been through the Section 3 disqualification process.

In 1868 the House of Representatives passed H.R. 869, “An Act prescribing an oath of office to be taken by persons from whom legal disabilities have been removed.” The bill, with minor amendments offered by the Senate, provided for a new oath of office as follows:

That whenever any person, who has participated in the late rebellion, and from whom all legal disabilities arising therefrom [has] have been removed by act of Congress by a vote of two-thirds of each house, has been or shall be elected or appointed to any office or place of trust in or under the United States, he shall, before entering upon the duties thereof, instead of the oath prescribed by the act of July two, eighteen hundred and sixty-two, take and subscribe the following oath or affirmation and no other: . . .

The bill became law less than a month after being reported out by the Senate. See the Act of July 11, 1868, 40th Cong., 2d sess., chap. 139.

To the extent implementing legislation was required, the Act of July 11, 1868, implemented the will of Congress for moving forward with Section 3.