So for present purposes let’s assume that the Supreme Court allows Donald Trump to remain on the ballot but says nothing to undercut the possibility that he could be prevented from assuming the presidency under section 3 of the 14th amendment. Do other mechanisms exist to stop Trump from taking office on the ground that he is an insurrectionist disqualified by section 3?
All parties in Trump v. Anderson agree that section 5 of the 14th amendment, which provides “Congress shall have the power to enforce, by appropriate legislation, the provisions of [the 14th amendment],” allows Congress to establish statutory methods for the enforcement of section 3. Trump asserts that such federal legislation is the only way the judiciary may enforce section 3. See Trump Brief at 18. Furthermore, Trump maintains (and to my knowledge no one has disputed) that the only such legislation currently in force is the Insurrection Act, 18 U.S.C. § 2383. Accordingly, Trump’s position is that Congress has effectively left “criminal prosecution under 18 U.S.C. § 2383 as the sole means of removing insurrectionist office-holders.” Trump Reply Brief at 20.