Democratic New Jersey Representative Bill Pascrell has floated an interesting idea. He proposes that members of the House of Representatives who “signed onto an amicus brief supporting Texas Attorney General Ken Paxton’s bogus Supreme Court case seeking to toss hundreds of thousands of votes in four swing states should be denied their seats in Congress”. The 3rd section of the 14th Amendment to the Constitution is the basis for this proposal. That section, adopted after the Civil War, reads:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. “
I doubt that simply signing a brief constitutes a breach of the 14th Amendment because the brief simply invokes a legitimate process and does not therefore qualify as “insurrection or rebellion”. But I think that the Speaker of the House, Nancy Pelosi, should introduce a resolution to the House after the Electoral College votes to elect Joe Biden as President that reads something like this: “This House pledges to support Joseph Biden as the legitimate President of the United States”. Then she should deny seating any Representative who refuses to vote in favor of the resolution. Republican Representatives would then have choice: accept the results of the election or lose their seat. Those who vote to accept President Biden would have to endure the wrath of Mr. Trump’s constituencies, a welcome step to separate those who lust for power over the Constitution from those who accept the Constitution as the fundamental law of the land.
I am not a lawyer so I have no idea whether this makes any sense at all. But I have grown completely frustrated by the lack of consequences for actions that have no basis in fact. A refusal to accept the votes of the Electoral College subverts the Constitution. And such actions deserve to have consequences.
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It’s out there, but I like it. Raises the question, can a majority of congress refuse to seat duly elected members? Would certainly end up before the courts.
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It would definitely end up in the courts. But each house of Congress can set its own rules for the conduct of its members. Thus, we have ethics investigations, rules of conduct on the floor, and judgments that lead to censure. It would be a very sticky and controversial case. But as far as I can tell, the current shenanigans are quite disruptive as well.
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Actually, I think some variation of this happened after the Civil War. Congress wanted the confederacy to rejoin the union only after they had ratified the 13th and 14th Amendments, but Johnson had already pardoned a large number of them and allowed several states back in without the consent of Congress. As a result, the states elected new congressional reps who also were former confederate officers. I believe that at least one of them (maybe more, I don’t recall right now) of those elected officials was not allowed to serve in congress because of his confederate ties. I think that although this election has not led to secession and violence (yet!) Trump still has more than a month to make mischief and he shows no sign of stopping. When Lincoln was alive, the Republican congress proposed a bill meant to penalize the rebels for the war. Lincoln never signed it and it was shelved after he died because Johnson would have no part of if. Maybe it’s time to pull out that bill and revamp it because it appears that these “kids” still have not learned that lesson. It’s what happens when you cross the GOP with the Dixiecrats–they play that same, tired, ignorant racist song from post-Reconstruction–and it’s time it stopped.
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Very nice analysis. I wish I knew more about the Reconstruction Era and how it was sabotaged. But your comments ring true. Thanks!!
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