Trump's Insurrectionist Payout Scheme Violates the 14th Amendment

“But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States….”

-Section 4, 14th Amendment

Over the past two years, we have been witnessing a wholesale effort to nullify the 14th Amendment. Indeed the ideology at the very core of Trump’s presidency is a confrontation with the protections and promise of the 14^th. From the Administration’s anti-DEI thuggery, its attack on birthright citizenship, the racist dismissal of Black public servants in positions of authority in the military and throughout the leadership of federal agencies, the attack on history and recognition of the contributions of Black people to this nation - all are policies undertaken in naked defiance of the language and spirit of the 14^th Amendment’s guarantees.

Indeed Trump’s second go at the presidency – in defiance of Section 3 of the Amendment – is a product of Supreme Court-sanctioned opposition to the clear terms of the Amendment.

Trump’s latest caper – an effort to purloin nearly two billion dollars from the U.S. treasury to pay rewards to his followers who participated in the violent January 6th, 2021 attack on the Capitol – would directly violate the express terms of Section 4 of the 14th Amendment.

It is by now widely understood that the 14^th Amendment guarantees birthright citizenship, and protection from state interference with citizenship rights. The Amendment incorporates the concept of equality – racial equality – into our Constitution for the first time. In so doing the 14^th brings our Constitution into harmony with the core principle of the Declaration of Independence that “all men are created equal.” The drafting and ratification of the 14^th Amendment constituted a stunningly ambitious act of constitutional repair and reconciliation.

But the Amendment does even more. For the first time, our Constitution confronted head-on the destructive forces that live in the DNA of our country that had been laid bare by the Civil War. The powerful force of white supremacist ideology would have to be cabined. But those founders recognized something else – that the strain of insurrection that led to secession and the creation of the Confederacy continued to run strong throughout the South, and it too would need to be disabled.

For these reasons, the 14th Amendment did more than guarantee equality. Section 2 of the Amendment contains a provision designed to punish southern states if they attempted to keep Black (men at the time) from voting. Section 3 bars those who participated in insurrection from serving in public office.

Section 4, excerpted above, bars payments to insurrectionists.

These three provisions - Section 2, Section 3, and Section 4 - have largely been forgotten. Section 3 was revived when the state of Colorado removed then former President Trump from the ballot in 2024, hewing to the language and clear intent of Section 3 that no person “having previously taken an oath…as an officer of the United States…to support the Constitution…shall have engaged in insurrection or rebellion…or given aid or comfort to the enemies thereof” shall be permitted to hold any civil or military state or federal office. The Colorado Supreme Court upheld the findings of lower courts that President Trump had participated in an insurrection on January 6th and removed him from the ballot. In Trump v. Anderson, the Supreme Court struck down that decision and ordered Trump returned to the 2024 ballot in Colorado, deeming Section 3 inoperable witout additional congressional legislation.

Section 2 may soon have its moment. Now that the Supreme Court has decided that racial gerrymandering cannot be remedied, in effect sanctioning Trump’s demand that states controlled by Republican legislatures disenfranchise Black voters by gerrymandering congressional districts to ensure an increase in Republicans serving in the House of Representatives, the appropriate response is an activation of Section 2 of the 14th Amendment, which provides a clear and unequivocal punishment for states that deny Black voting rights – the loss of congressional representation.

Section 2 requires that states that deny or abridge voting rights for Black voters, shall have their representation numbers for congressional seats “reduced in the proportion which the number of such citizens shall bear to the whole number of citizens” of voting age in the State. Those framers understood that a crippling loss of power might be the only way to constrain southern white supremacist efforts to politically disempower Black voters.

Recently Section 2 has been the subject of litigation in a case dismissed on standing grounds. A powerful concurrence by a widely respected judge on the D.C. Circuit Court of Appeals suggests ongoing possibilities for new litigation brought under Section 2.

Last month students in my 14^th Amendment seminar conducted an educational briefing on Section 2 for some members of the House Judiciary Committee at the invitation of Ranking Member Jamie Raskin (D-Md) to explore other potential avenues of Section 2 application.

Howard Law School Spring 2026 seminar students on the way to 14th Amendment, Sec. 2 briefing on Capitol Hill.

And now Trump and Acting Attorney General Todd Blanche’s grotesque scheme to reward January 6^th insurrectionists with payouts from the federal treasury completes the Trump administration’s section-by-section effort to violate the 14^th Amendment. Section 4 of the Amendment bars the United States from paying money to those who participated in insurrection. Congress, the branch of government empowered by Section 5 of the Amendment to enforce the 14^th Amendment’s guarantees, must block this blatantly unconstitutional scheme from moving forward.

The 14^th Amendment is the constitutional tool designed to constrain the very abuses of power that we are confronting at this moment. It was forged in a time of national fracture, widespread white supremacist ideology, and insurrectionist fervor. In other words, its provisions were uniquely created for such a time as this.

It is, if properly enforced, the most powerful tool we have to stave off the total collapse of democracy in this country.

But it requires Congress to enforce its provisions and a Supreme Court willing to recognize and uphold its protections. At the moment, we have neither. And THIS, for those who keep score, is the root and branch of our constitutional crisis.

Our focus must be on applying pressure on members of Congress – both Republicans and Democrats – to reject this unconstitutional scheme cooked up by Trump and Blanche. At the same time, I hope that a team of brilliant litigators to seek to enforce Section 4 and defeat this plan in the courts.