WOW! Mike Johnson could refuse to seat all elected Dems! Is that Possible. Yes, and Constitutional! Democrats are starting a new narrative : "So what happens on January 3 when Mike Johnson, on orders from Donald Trump, blocks all incoming newly elected Democrats from taking their seats in the House of Representatives? I am hearing more and more about this being a very real possibility, including this morning from J. Michael Luttig on MSNOW."
Are they doing it to rile up their base before midterms? Or, is there more to it? Are they trying to get out ahead of something? Is their claim even possible?
As it turns out, it is not only possible but it is Constitutional.
With the help of Gemini AI, we have confirmed that YES, Mike Johnson could, Constitutionally, refuse to seat an 'elected and certified' person to a seat.
How? Check this out:
Under Article I, Section 5 of the U.S. Constitution, each house of Congress is designated as the sole "Judge of the Elections, Returns and Qualifications of its own Members". While the Supreme Court ruled in the landmark case Powell v. McCormack (1969) that Congress cannot reject a member based on their character or conduct if they meet the basic constitutional requirements (age, citizenship, and residency), the Court left the door open regarding contested election results. Because Congress has the final say on judging the elections themselves, determining whether an election was free from fraud is fully within its power. [1, 2, 3, 4]
The House has three ways to handle problems.
When allegations of fraud arise, the Speaker and the House typically handle the situation in one of three ways:
Provisional Seating: The House votes by a simple majority to seat the member-elect provisionally. They take the oath, but their seat remains under a cloud of doubt while the House Administration Committee conducts an official investigation into the fraud claims. [1] (http://www.yelmonline.com/stories/how-the-us-house-could-overturn-the-midterm-election-results,408058)Refusal to Seat
Pending Investigation: A member-elect's oath can be challenged on the floor on the first day of Congress. The House can vote by a simple majority to refuse to seat the individual until the House Administration Committee resolves who actually won the lawful election. [1] (https://www.everycrsreport.com/reports/RL33780.html), [2] (http://www.yelmonline.com/stories/how-the-us-house-could-overturn-the-midterm-election-results,408058)
Final Exclusion: If an official congressional probe proves that the election was fundamentally tainted by fraud, a simple majority vote of the House can permanently exclude the individual, nullify their state-issued election certificate, and either seat the rightful winner or declare the seat vacant. Because this is a question of a contested election under Article I, Section 5, federal courts view this as a non-justiciable "political question" and will not overturn the House's majority decision. [1] (https://www.everycrsreport.com/reports/R40105.html), [2] (http://www.yelmonline.com/stories/how-the-us-house-could-overturn-the-midterm-election-results,408058), [3] (https://www.democracydocket.com/opinion/congresss-forgotten-electoral-power/), [4] (https://www.everycrsreport.com/reports/RL33780.html)
But, what about the Bush/Gore hanging chad case? It does not apply:
In Presidential elections. Gemini says the Constitution gives the States the right to administer elections and then the the court systems, including SCOTUS. However, Constitutionally, that is not the case for House or Senate seats. Congress's Constitutional role in Presidential elections is vastly different and they have no Constitutional authority to investigate a presidential race nor do they have judicial powers over it. They count the electoral votes.
How expansive are the powers of the House related to seating new members and investigating elections? Incredibly vast:
Each House, in judging of elections under Article I, Section 5, Clause 1, acts as a judicial tribunal, with like power to compel attendance of witnesses. In the exercise of its discretion, it may issue a warrant for the arrest of a witness to procure his testimony, without previous subpoena, if there is good reason to believe that otherwise such witness would not be forthcoming.1 It may punish perjury committed in testifying before a notary public upon a contested election.2 The power to judge elections extends to an investigation of expenditures made to influence nominations at a primary election.3 Refusal to permit a person presenting credentials in due form to take the oath of office does not oust the jurisdiction of the Senate to inquire into the legality of the election.4 Nor does such refusal unlawfully deprive the state that elected such person of its equal suffrage in the Senate.5
https://constitution.congress.gov/browse/essay/artI-S5-C1-1/ALDE_00001039/
Will the Republicans in the House stand up and fight using all the tools available to them? Or, will they turn into yellow bellied cowards and meekly let the Islamists and Communists take over our country?
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