Can Republicans Just Refuse To Seat Elected Democrats?

Written By Leeja Miller

Sources:

Transcript:

Welcome to Why, America? I’m Leeja Miller. It has been 3 weeks since Arizona Representative Adelita Grijalva was elected by the people of Arizona’s 7th district in a special election to replace Grijalva’s late father, former Representative Raul Grijalva. And yet Mike Johnson, whose role as Speaker of the House is to swear Grijalva in so she can officially begin working, has refused to swear her in. For three weeks, the over 800,000 people living in southern Arizona on the border with Mexico have not had representation in the House. Mike Johnson claims the house isn’t in session so there’s no way to swear her in, holding her job hostage until the government shutdown ends. In light of this, a lot of you have been asking me: can Republicans just refuse to swear-in duly elected Democrats if they want to? Today we’ll be uncovering what consequences Mike Johnson could face and what this might mean for the midterms and all other future elections moving forward.

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In the 3 weeks since the special election that put Adelita Grijalva in place as the representative of the 7th district of Arizona, Grijalva has been denied entrance into her assigned office on capitol hill. She has been forced to navigate the capitol with an escort at her side, not free to walk the halls like her sworn-in colleagues can. And Mike Johnson has all but ignored her, aside from when he is forced to address the question of her swearing in by reporters. When pressed, Johnson says (either himself or through statements from his aides) that it’ll eventually be scheduled, that Democratic leadership in the Senate is keeping the government shut down and once they end the shut down he will swear her in, and that the House isn’t in legislative session so, basically, sowwy we can’t do it, I don’t know I’m just a baby. This despite the fact that literally earlier this year Mike Johnson swiftly swore in Florida Republican representatives Jimmy Patronis and Randy Fine during a pro forma session. A pro forma session is just a short session, often just a couple minutes long, where the chamber just gavels in and gavels out with no legislative business attended to. Grijalva has been in attendance at the pro forma sessions held since her election and yet Mike Johnson has ignored her presence and played dumb about being able to administer her oath of office and swear her in.

This is a clear power grab by Mike Johnson to hold her seat hostage for political ends to punish members of the other party. Many are also speculating that Mike Johnson, likely because of pressure from Trump and other leadership, is holding up her swearing in to give the president more time to threaten and pressure lawmakers who signed a discharge petition to force a vote on the release of the Epstein files. 218 signatures are necessary on that petition in order to force the vote. The petition currently has 217. Grijalva has vowed that she would be the 218th signature. The vote wouldn’t necessarily result in the release of the Epstein files, but it would force Republican lawmakers to put down in writing that they think the files shouldn’t be released, which would keep Trump happy but deeply anger their constituent base. Johnson of course denies that this is about the Epstein files but let’s just be real here and state the obvious about what’s going on, as Moira Donegan recently put it for the Guardian quote “Johnson is ignoring the constitution and subverting the will of the voters in order to buy time, in an effort to spare his party embarrassment over their president’s one-time close confidence with a pedophile.”

But also this has broader implications given the Republican party’s penchant for attempting to subvert election results and stage coups, etc. Will this become par for the course? Will the Speaker of the House or other Republican leadership attempt to subvert the results of fairly held elections based on some made up pretext like, I don’t know, election fraud, something they’ve spent half a decade at this point priming voters to believe is happening at a large scale in this country. For the record it is not. Not in a way that’s been borne out by the evidence. There are rumbles that election fraud against Democrats occurred during the 2024 election but given recent history I’m not ready to start declaring that fraud is infiltrating our elections at such a large rate that it’s actually impacting outcomes. Let’s not be hasty in making those claims. Especially considering that FAR more undue influence is poisoning our elections from billionaires because of our abysmal campaign finance laws. If we’re looking for low hanging fruit on how to best ensure that the will of the people is being properly heard during our elections, let’s start there. But that is a tangent for another day. The point is that it is not an unfounded fear to worry whether Republicans will use their wild claims of election fraud to try to claim that any Democrats elected to Congress in 2026 and beyond were put in place based on a fraudulent election and therefore should not be sworn in until a thorough investigation can be held. But, are they allowed to do that??

Well, we are in unprecedented times, but I am a lawyer and so even in unprecedented times I can usually find something in the constitution or Supreme Court precedent to help guide my analysis of an unprecedented situation.

First, what does the constitution say? The relevant part here is Article 1, which regards the legislative branch or Congress. At the very basic level, the Constitution mandates that there is a House and a Senate, and that representatives to the House will be elected every two years by the people, and that Senators will be elected every six years, also by the people. Initially senators were selected by state legislatures but that was changed to the popular elections by the 17th Amendment. The constitution says that when there are vacancies outside of regular election years, the state with the vacancy will hold an election to replace that person, though the state has a lot of power over the process for handling that election. So it’s pretty obvious but it bears pausing and repeating. The constitution mandates that the people be represented by a member of the House and of the Senate. Mike Johnson is standing in the way of that very clear constitutional mandate by not swearing in Adelita Grijalva.

Article 1, section 2, says that to be a member of the house of representatives, a person must be at least 25, have been a citizen of the US for 7 years, and must be an inhabitant of the state where they were elected. Section 3 says that Senators must be at least 30, must be a citizen of the US for at least 9 years, and must be an inhabitant of the state where they were elected. And Section 5 pertains to Congressional proceedings. It states, in relevant part in Clause 1, that “Each house shall be the judge of the elections, returns, and qualification of its own members.” And in clause 2, that “each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.” And it is that power to adjudicate elections and that expulsion power that we’re most interested in here. Under clause 2, the Senate or the House can expel a member by a 2/3rds vote if the member violates its rules or for other reasons. The Supreme Court has found that this expulsion power is pretty broad and gives the houses of Congress a lot of discretion. Back when the Supreme Court actually respected the separation of powers of the government, it has frequently declined to answer “political questions” where it is clear from the Constitution that the power is meant to be left to a different branch of government. Article 1 makes it pretty clear that Congress gets to make its own rules of process and handle the punishment or expulsion of members for breaking those rules. That doesn’t mean that members of Congress can’t also be tried in court if they break the law or something, but when it comes to disciplining members for their conduct, that is the purview of Congress alone. The Supreme Court has found it has no authority to really step in and manage how the House or Senate handles that business. But what about not an expulsion but instead barring someone from getting sworn in to begin with? Is that the same thing?

The Supreme Court has answered this question, in a case called Powell v. McCormack from 1969. In that case, Representative Adam Clayton Powell sued the Speaker of the House, John McCormack, for refusing to administer the oath of office. The speaker refused to do so because the House was in the middle of investigating Powell for mishandling of funds while he was a Representative in the 89th Congress. But then he was elected to serve in the 90th Congress, and instead of getting sworn in he was told he couldn’t take his seat until the investigation into his mishandling of finances concluded. The Supreme Court found that the refusal to seat Powell was not an expulsion but instead an exclusion, and that under Article 1 section 2 clause 5, the expulsion power, Congress only had the power to judge members’ qualifications based on the three qualifications listed in the Constitution–their age, their citizenship status, and their residency in the state where they were elected. They were free to seat him and then expel him, but the House speaker did not have the power to refuse to seat him. So under Congress’ expulsion power, Mike Johnson does not have the right to refuse to seat a duly elected member of the House. And, in fact, the House’s own rules dictate that quote “the oath of office is a matter of high privilege.” The rules also dictate that administration of the oath takes precedence over other business and does not require the presence of a quorum. So all signs indicate that it is Mike Johnson’s duty, his JOB, that WE are paying him to do, to administer the oath of office to Adelita Grijalva as soon as possible, and that should take precedence over other matters.

BUT the conversation is different in a case where a member’s right to take their seat is being challenged on the basis of election fraud. That is not the case with Grijalva, no one has challenged her right to take the oath, Johnson is just sitting on it because he’s trying to punish Democrats and hold up the release of the Epstein files. But what about in the situation where, for example, the 2026 midterms happen and Republicans coalesce around challenging the results of any election that a Democrat won? What happens then?

Again, the constitution says that the houses of congress have the right to be the judge of the elections and qualifications of its members. So that’s two opportunities to challenge election results. First, they could argue that an elected person is not qualified because they don’t meet the age, citizenship, or residency requirements. It’s not hard to envision how, in a world where the Trump regime is out here questioning the birthright citizenship status of people born in the United States to foreign parents, there could be a challenge to the citizenship of an elected Democrat whose parents are foreign-born. We’re not there yet, and so far Trump’s attempts to undo birthright citizenship have not held up in court. But given how deeply intense the debate around citizenship is in this country, the fact that that’s one of the requirements to sit in Congress or run for President is something that makes my ears perk up. Something to keep an eye on.

But really the main concern is that the houses of Congress have the power to adjudicate the elections of its members. And the Supreme Court has found that THAT power, the adjudication power, is more of a political question and something intentionally left in the hands of Congress, not to be meddled with by the Supreme Court. In a case called Barry v. United States ex rel Cunningham from back in 1929, the court found that each house of Congress has sole discretion in their judgment when someone’s claim to their seat is challenged, meaning in judging the validity of the election that elected them. Further, the court found that holding up a member’s ability to take their oath if there is a challenge as to their qualifications or election, does not deny a state equal suffrage in Congress, meaning it doesn’t violate the part of the constitution that guarantees representation in Congress, even if a state and its people doesn’t have representation for a period while the investigation plays out. Finally, the court holds that while the power of Congress to handle these matters without judicial interference is without doubt, there is a way to challenge the house or senate’s use of that power, and that is by filing a lawsuit in court and making a claim that Congress applied its power in such an arbitrary and improvident way that it denied the person due process of law.

Okay, so that’s the constitution and the precedent, thank you for putting on your nerdly technical law hats with me. What does this all mean in practice? Here’s the bottom line: no one has challenged Grijalva’s claim to her seat. The election was fair, the people overwhelmingly elected her, no issues with fraud or tampering exist. She is over 25, a citizen for at least 7 years, and a resident of Arizona. There is no reason why she should not have her oath administered as soon as possible. Mike Johnson is, at best, failing to perform his duties as speaker of the house, he’s not doing his job, if this were a regular 9 to 5 he’d be on thin ice if not completely fired at this point. At worst, he is holding up the process because he’s attempting to shield Trump from the fallout of his close relationship, for years, with a known pedophile, as well as the embarrassment of the Republican party in having to vote to hide the evidence of that relationship from a public that is absolutely fucking horrified and pissed about what is clearly a scheme to protect powerful people from being implicated in Jeffrey Epstein’s crimes. That is a complete abuse of power that should result in Mike Johnson’s expulsion but, as we’ve already gone over, the only way a member can be expelled is through a 2/3rds vote which isn’t going to happen. Otherwise Mike Johnson is up for re-election in next year’s midterms. This delightful fella, Conrad Cable, is running against him on the Democratic ticket for the 4th district of Louisiana. Um, odds aren’t great, the 4th district has been pretty overwhelmingly Republican and Johnson has won his elections by at least 60% of the vote for the last decade. But a girl can dream. This is also why the oral argument in the Supreme Court today over Louisiana’s redistricting plan is so important, check out my episode from Monday about that debacle. So Johnson isn’t going anywhere.

And the implications for future elections are even more stark, given Republicans’ tendency to twist rules and laws beyond recognition in order to suit their needs and give their fascist power grabs the veneer of legitimacy. It will be Mike Johnson who swears in any new democrats elected to the House next year. There are currently 219 Republicans and 214 Democrats, including Grijalva, with two vacancies. Given the unpopularity of Trump’s policies so far and his abysmal approval rating, it’s not a stretch to consider what might happen if the pendulum swings back and a bunch of Democrats win seats and retake either chamber of Congress. Denying the validity of those elections would be Republican’s main weapon in attempting to subvert the transition of power to the Democrats. And in doing so they may hold up the swearing in of a large number of representatives, leaving literally millions of Americans unrepresented and gumming up the working of the legislative branch for as long as possible. Much like with the current government shutdown, that would likely serve the Trump regime’s agenda just fine, giving them cover to continue to dismantle everything they can until there is no functioning government left and the goons behind the scenes of the regime get final say on everything. This could all of course be challenged in court, where elected members being denied their seat could claim that they are being denied due process such that the court needs to step in, and that might prove somewhat successful, but of course that would rely on eventually the Supreme Court stepping in and actually honoring their precedent which seems like a pipe dream at this point. I don’t think this refusal of administering the oath is the sole tactic that Republicans are going to use to undermine democratic elections next year and beyond–they are working as hard as they can to gerrymander as many blue districts out of existence, among so many other things that I’ve covered in other episodes, but Mike Johnson’s refusal to move forward with Grijalva’s oath is a clear indicator that they are aware of this as an option for holding up the proper functioning of government.

So, what do we do about all this? Do not shut up about Adelita Grijalva, Mike Johnson’s actions should not get lost in the chaos of the news cycle. Post about it, call your representatives about it, keep your eye on it. This is not normal and it is unacceptable. Mike Johnson works for us and he is not doing his job. On a larger scale, and this also might be a pipe dream but it’s something I and others have been thinking about, the kind of large scale action that is needed to address what is happening right now and to show our collective discontent with this administration, and that is a general strike. A general strike, in the context I’m referring to, is when workers from across sectors refuse to engage in economic activity in order to protest government policy. If a large enough swath of the population does so, it causes the entire society to grind to a halt and gives those striking greater leverage. Given the fact that billionaires are the only ones who matter to our elected officials, we have to make the billionaires hurt, and we need collective action to gain the leverage that a few billionaires get automatically. Greece just saw its second general strike this month in protest of a new labor law in the country. It disrupted transportation throughout the country as thousands took to the streets.

Here’s the thing with a general strike in the United States, however. We are very different from a lot of other countries that have successfully held general strikes or overthrew dictators. We are geographically massive, and our population is massive and incredibly diverse as well. That makes organizing enough of us to make a difference on a national scale really difficult. On top of that, Democratic leadership, you know the major opposition party, is completely uninterested and incapable of organizing something like this. So the scale is really overwhelming, compared to a smaller country like Greece. Additionally, in order for a general strike to actually accomplish anything, it cannot merely be a day where thousands of people take to the streets and sing kumbaya. That should definitely keep happening, the No Kings rallies should continue to happen because we should never shut up about how unhappy we are, there’s one on the 18th. But that is not a general strike. There need to be clearly outlined demands and enough cohesion in the movement to ensure that the general strike doesn’t stop until those demands are met. I think the government shutdown could be a great starting point–if they don’t work, we don’t work. But there needs to be a cohesive coalition of actually experienced organizers who can articulate a few major and attainable demands that we can all get behind. And then we have to be willing to withstand whatever backlash and consequences come from said general strike. And Americans really don’t love being uncomfortable. We’re not very scrappy. We like immediate gratification. The success of capitalism has made us soft, and the exploitation of capitalism has made us terrified because most of us are in or on the brink of poverty. But I’m not sure we’re desperate enough for change yet that enough of us would be willing to be uncomfortable for long enough to make a general strike effective. I’m not sure how bad it has to get for a movement to form, but I’m just throwing it out there as an option in case you’re looking for some big idea to get behind. If you know of coalitions that are working to make this happen, comment them below. And if you have questions left unanswered about the headlines you’re seeing that you want me to answer in a future episode, throw them in the comments and I might be able to answer them.

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And if you liked this episode, you’ll like the one from Monday about how the Supreme Court is about to gut the voting rights act again.

Leeja Miller
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Voting Rights Are On The Chopping Block