Some lawmakers are mobilizing to sidestep a constitutional crisis if President Donald Trump pressures House Republicans to block the seating of congressional Democrats, if they win the chamber.
Reps. Josh Gottheimer (D-New Jersey) and Don Bacon (R-Nebraska) are circulating a letter that asks members to pledge to recognize election winners certified by each state and oppose “any attempt to refuse or delay the seating of any Member-elect.” The Wall Street Journal was the first to report on the letter.
It is unclear how many members have signed onto the letter. The offices of Reps. Mike Lawler (R-New York) and Brian Fitzpatrick (R-Pennsylvania) confirmed to The Washington Post that they have signed on.
Anxiety among lawmakers about the peaceful transfer of power has lingered following the attack on the Capitol on Jan 6. 2021, and Trump’s pressure on politicians to contest the results of the 2020 election. Recent attempts by the Trump administration to make changes and exert more control over elections has exacerbated those worries. Some Democratic lawmakers have raised concerns that Trump could pull similar tactics to deny the Nov. 3 election results if his party loses control of one or both chambers of Congress.
A spokesman for House Speaker Mike Johnson (R-Louisiana) did not immediately respond to a request for comment on the letter.
Sen. Thom Tillis (R-North Carolina) dismissed concerns about any plan to delay seating members, saying in an interview with CNN on Wednesday that “there may always be pressure” on Johnson, but he believes Johnson would “do the right thing.”
When asked last Sunday whether he’s concerned that new House members won’t be sworn-in on time, House Minority Leader Hakeem Jeffries (D-New York) — who would likely become speaker of the House if Democrats win the majority — told reporters “everyone who’s elected by the American people on November 3rd is going to be seated on January 3rd.”
“If we have the opportunity to govern in the majority, we will take the gavels in the new Congress,” Jeffries said. “We’re confident, but we’re not taking anything for granted, and we’re doing everything necessary to ensure that the results of the November 3rd election are brought to life when the new Congress is sworn in on January 3rd.”
Many congressional law experts have said any attempt to refuse to seat members in the House would be unlikely, and almost certainly unsuccessful due to existing laws and Supreme Court precedent.
When the House reconvenes on Jan. 3, 2027, for the start of the 120th Congress, there will be no members and no speaker of the House, so Johnson would have no authority over seating members, said Derek Muller, a law professor at Notre Dame Law School.
Members-elect must first elect a speaker by a simple majority vote. The speaker will then swear in the present members-elect.
“Presuming that Democrats take the House, let’s assume that, that will all move very smoothly,” Muller said. Even if Republicans in the minority objected to a Democratic speaker seating members, Democrats could overrule them, he added.
Josh Chafetz, a law professor at Georgetown University Law Center, echoed that sentiment, saying that challenges to members-elect in contested elections would likely be unsuccessful.
“I’m not particularly worried about this,” Chafetz said. “Of all the things to worry about, I just don’t think a minority refusing to seat a majority is at all high on the list.”
Sen. Alex Padilla (D-California), who has been involved in legislative efforts to protect election integrity, said he supported the Gottheimer-Bacon effort.
“I welcome bipartisan efforts to reaffirm the rule of law, especially when it comes to our elections, yet it’s a sad indicator that we even have to have this conversation,” Padilla said in a statement.
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