Professors Akhil Reed Amar and David Vikram Amar argue that President Donald Trump is covered by the phrase in the Fourteenth Amendment, Section 3, that disqualifies a person who holds "any office *** under the United States" from being eligible to be elected President, if he has engaged in an insurrection, after swearing an oath to support the Constitution. The Amar brother's position is that the presidency is an "office *** under the United States", and that Donald Trump is disqualified from being elected President in 2024 even though the entire Republican Party overwhelmingly wants Trump to be their nominee.
The Incompatibility Clause of Article I, Section 6 says that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." And, the Presidential Succession Clause of Article II, Section 1 says that in the event of a vacancy in both the presidency and the vice presidency "Congress may by Law [declare] what Officer [legislative or executive] shall then act as President." For most of American history, the Speaker of the House of Representatives and the President Pro Tempore of the Senate have been ahead of the Cabinet in the line of succession to the presidency. That arrangement is as American as apple pie.
Under Professor Amar's theory that the President holds an Office under the United States for the purposes of Section 3 of the Fourteenth Amendment, it is unconstitutional for Congress to put the Speaker of the House of Representatives or the President Pro Tempore of the Senate in the line of succession to the Presidency, as Congress has done since 1947, because doing so would violate the Incompatibility Clause. (A Member of either House would unconstitutionally get to hold, simultaneously, their congressional seat and an Office under the United States while they served as Acting President).
