Wednesday, November 09, 2022

Disorganizing the New House

Gerard N. Magliocca

With control of the new House of Representatives still in doubt, I am reposting this old post of mine from August. The chances that there will be serious Section 3 challenges in January are growing.


The latest election chatter is that Democratic prospects are improving. Maybe they can hold the House of Representatives or keep Republican gains to a minimum. Who knows. But there is a problem lurking.

It is likely that a couple of Republican House members will be challenged on Section Three grounds in January. In other words, a House Democrat will say that Representative so-and-so is ineligible to serve in the House because of his or her participation in the insurrection. Then the House will have to set up some process to address the challenge.

Here's the tricky part: As I understand past practice, a challenged member-elect may not serve until the challenge is resolved. In a very closely divided House, this could mean that a Republican majority of say, 3 seats, is no majority at all because at least 3 GOP Members will be challenged. The seats will be vacant until the challenge is resolved. And who knows how long that could drag out (or be dragged out). In the meantime, the House will be even more chaotic than usual.

Of course, if the Democrats retain their House majority in November, then one or more GOP House members may be excluded on Section 3 grounds and will then challenge that exclusion in the courts. The issue of whether Powell v. McCormack applies to Section Three is unresolved. 

UPDATE: Of course,Brian Kalt has a draft paper up that covers various scenarios about organizing a closely divided Congress.


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