• Two attorneys argue that Congress can block Donald Trump from taking office by invoking the 14th Amendment, citing his alleged involvement in insurrection under Section 3.
• They suggest Congress reject Trump’s electoral votes during the January 6 certification process, enabling Kamala Harris to assume the presidency.
• Partisan divisions and previous Supreme Court rulings make this scenario unlikely, as Congress seems set to certify the election results.

Two liberal attorneys propose a last-minute way for Congress to stop President-elect Donald Trump from becoming president by invoking the 14th Amendment. Attorneys Evan Davis and David Schulte claim that if Congress acts quickly, Vice President Kamala Harris could claim the presidency instead.

In an opinion piece published in The Hill, Davis and Schulte argue that Congress holds the authority to reject electoral votes during the January 6 certification process. They assert that Section 3 of the 14th Amendment constitutionally bars Trump from holding office due to his alleged support for an insurrection. The lawyers insist lawmakers must act to block Trump from taking office, as their oaths bind them to uphold the Constitution.

Legal Basis for Disqualification

Davis and Schulte argue that electoral votes for a disqualified candidate are "not regularly given," as stated in the Electoral Count Act. They compare Trump’s alleged disqualification to constitutional issues like failing to meet the age requirement or lacking U.S. citizenship. They claim Congress has both the power and responsibility to reject these votes.

The Electoral Count Act requires a written petition signed by 20% of both House and Senate members to formally object to electoral votes. If both chambers sustain the objection with a majority vote, they exclude the disqualified votes. In this case, excluding all of Trump’s votes would allow Congress to declare Harris president-elect.

Challenges in Congress

The attorneys acknowledge that Republican support for this move remains unlikely. Partisan divisions make it improbable for GOP lawmakers to endorse actions that lead to Harris’ presidency. Many Democrats also hesitate to challenge the election results, urging respect for voters’ choices instead.

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Democratic Rep. Joe Morelle of New York told Politico he expects a normal transfer of power, contrasting it with the January 6, 2021 riots. Other Democrats, who objected to Trump’s election in 2017, have also stated they won’t challenge the results this time.

Supreme Court Ruling and State Challenges

The Supreme Court further complicates the issue by requiring Congress to pass legislation to enforce Section 3 of the 14th Amendment. In February, the Court rejected Colorado’s attempt to remove Trump from the 2024 ballot, citing this requirement. Other states, including Colorado, failed to disqualify Trump earlier in the election process due to insufficient legal support.

As the January 6 certification date approaches, Davis and Schulte’s argument underscores the political and legal divides in the U.S. While their proposal highlights constitutional accountability, Congress seems unlikely to act on it. Lawmakers appear ready to certify the election and proceed with normal democratic processes.

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