Dem
47
GOP
53
As long as we're on the Congressional beat, Arizona AG Kris Mayes has made good on her threat and filed a lawsuit seeking to have Rep.-elect Adelita Grijalva (D-AZ) seated. Grijalva, of course, won the special election to replace her father just shy of 1 month ago, and her certificate of ascertainment was issued shortly thereafter. There is absolutely no question, and nobody disputes, that Grijalva is duly elected and is entitled to the seat. Equally important, the residents of AZ-07 are entitled to be represented in Congress, especially given that they have had no representation since Raúl Grijalva died on March 13.
Mike Johnson's very clear goal here, as we have noted many times, is to keep Grijalva from adding the 218th and decisive signature on Rep. Thomas Massie's (R-KY) "release the Epstein Files" discharge petition. In order to achieve this goal, the Speaker's done quite the tap dance, to the point that even Mitch McConnell—who has an 8th degree black belt in making up B.S. rules—has to be impressed. For a couple of weeks, Johnson said that it's just not possible to swear a new member in when Congress is only meeting for pro forma sessions. When it became clear that was a lie, inasmuch as two Republicans were sworn in during a pro forma session earlier this year, Johnson eventually came up with a new explanation. He now claims that what makes Grijalva different is that when she won her election, Congress was already out of session. So that's why she can't be sworn in during a pro forma session. The Speaker did say that Grijalva is welcome to begin serving her constituents, even if she's not officially seated. What a sport he is!
Mayes' lawsuit has both a PR value and a practical value, we would say. The PR value, of course, is that she's standing up to Republicans who are bending and twisting the Constitution to serve their own ends. Democrats want this kind of pushback right now (see above for more), and Mayes is delivering it. The practical value is that, if the shutdown—and the House recess—drag on and on, this might actually get before a judge, and there might actually be a ruling, since this is clearly a time-sensitive matter.
And what might that ruling be? Let us be clear that we are hardly experts on the laws of federal procedure. And even if we were, it might not help all that much, because this particular situation is not one that has come up before. That said, we think we can venture an educated guess. In general, courts are pretty deferential to Congress when it comes to how Congress runs itself. However, the courts are also very clearly willing to step in and lay down the law when they feel that is necessary. The key case here is Powell v. McCormack, in which the Supreme Court found that a member of Congress may only be denied their seat if they fail to meet the requirements laid out in the Constitution (e.g., age, citizenship, residency).
Needless to say, "you have to show up during the right kind of House session" is NOT one of the requirements laid out in the Constitution. And beyond that, if a Speaker can refuse to administer the oath based on some flimsy pretext, that opens up some pretty big cans of worms. For example, let's say the next Congress meets, and the Speaker refuses to swear in anyone elected from a Southern state, claiming that those states are not in compliance with the Voting Rights Act of 1965, and so their members-elect are not, in fact, duly elected. Those members would head to court, and would probably win, but it would be chaos for a while. And during that period of chaos, say a week or two or three, the House would be dominated by the party of the Speaker. And if that party was very organized and very disciplined, they could pass a whole lot of very partisan stuff during that period of time. If you pair that with the ending of the filibuster, and you assume a trifecta, then you could end up with a version of the parliamentary system on steroids—your party can implement whatever it wants, but it only has 10 days to do it.
In short, our guess is that if this does get before a judge, Johnson will lose. It's also not impossible the judge could find the Oath of Office Act of 1789 to be unconstitutional, which would mean that anyone who is legally entitled to administer an oath could swear Grijalva in. After all, it was not clear that a notary public could swear in a president... until it happened with Calvin Coolidge. And, as a sidebar, isn't it a little strange that the list of people who can legally swear in a president is way, way longer than the list of people who can swear in a member of the House?
Let us also note one other legal point, even though it's VERY inside baseball. The whole point of these pro forma sessions is to keep Congress from being out of session long enough for the president to make recess appointments (it's weedy, but they basically have to be completely out of session for 3 days to unlock the recess appointment power). If Johnson is taking the position that pro forma sessions are not real sessions, that runs contrary to the jurisprudence that says they ARE real sessions (most obviously, NLRB v. Noel Canning). Kris Mayes could, and probably will, bring this up in court. Alternatively, a current or future president could file suit, reclaiming their power to make recess appointments, with the argument "even the Speaker of the House admits these aren't actually sessions of Congress."
Truth be told, we continue to struggle to understand exactly what Johnson's endgame is here. The explanation that seemed most plausible was that the Speaker was buying extra time to turn the screws on the three non-Massie Republicans who have signed the petition, in hopes that one of them would defect. Clearly, that is not working. And we are now at a point where flipping one of them won't do much good, anyhow. On November 4, there will be a special election in TX-18 to replace the deceased Rep. Sylvester Turner (D). That district is even bluer (D+21) than Grijalva's district (D+13). So, a Democrat is going to win (and polls confirm this). It's a jungle-style election, which means that if no candidate claims a majority, there will have to be a runoff, likely in December or early January. However, one day, not too far off, there will be another fire-breathing leftist joining the House. And THEY can be the 218th signature, even if Rep. Marjorie Taylor Greene (R-GA) or Rep. Lauren Boebert (R-CO) or Rep. Nancy Mace (R-SC) gets cold feet. So, Johnson's extended holding pattern is going to degrade one of these days; it's only a matter of when. (Z)