Can state lawmakers who participated in the Capitol riot be removed through the 14th Amendment?
<p>It has been reported that <a href="https://www.nytimes.com/2021/01/06/us/derrick-evans-west-virginia-capitol.html" rel="nofollow noreferrer">at least one sitting state lawmaker</a> participated in the storming of the US Capitol on January 6, 2021.</p>
<p>The 14th Amendment, section 3, says:</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>So someone who engaged in &quot;insurrection or rebellion against&quot; the US Constitution cannot be a state legislator (or other type of federal or state official). My questions are:</p>
<ol>
<li>Could the storming of the US Capitol count as insurrection against the Constitution for the purposes of section 3 of the 14th Amendment?</li>
<li>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?</li>
<li>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?</li>
</ol>

<blockquote>
<ol>
<li>Could the storming of the US Capitol count as insurrection against the Constitution for the purposes of section 3 of the 14th Amendment?</li>
</ol>
</blockquote>
<p>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.</p>
<blockquote>
<ol start="2">
<li>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?</li>
</ol>
</blockquote>
<p>No, this section is self-executing. No separate law is needed.</p>
<blockquote>
<ol start="3">
<li>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?</li>
</ol>
</blockquote>
<p>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.</p>
<p>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  &quot;insurrection or rebellion&quot;, probably in a Federal Court, unless that had already been conclusively established in some proceeding.</p>

united-states