A little-known congressional maneuver could block members of the Democratic Socialists of America (DSA) from being sworn in as members of the House of Representatives next year, even if they win their elections on Tuesday.
Members-elect must swear an oath to uphold the Constitution before they can become full members of the House. At the beginning of a new Congress, that oath is typically taken en masse by all 435 members, led by the House speaker.
But an argument circulating in conservative circles posits that any member-elect can challenge another member-elect’s right to be sworn in, provided they have compiled evidence that that person would not uphold their oath. That would then lead to House-wide deliberations followed by a vote on whether that member-elect has a right to be sworn in.
In the case of DSA members, one potential argument could be the group’s platform calling to scrap the current U.S. Constitution and draft a new one. Several DSA members and self-proclaimed democratic socialists have already won primaries across the country.
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Rep. Keith Self, R-Texas, suggested to Fox News Digital that he could invoke the maneuver.
“You cannot swear an oath to support and defend the Constitution while actively working to destroy it. The oath of office is not just words you say at a ceremony. It is a belief. It is an oath to our country and our fellow countrymen,” Self told Fox News Digital.
“The House has both the authority and the duty to ensure that anyone who takes that oath does so in good faith, without mental reservation or purpose of evasion. As DSA candidates and the Red-Green Alliance gain ground, we must enforce the Constitution as written or risk allowing people committed to replacing it to take seats of power under false pretenses.”
The “Red-Green Alliance” is a term used on the right to describe cooperation between far-left groups and radical Islamic organizations or operators.
“Anyone who has personally embraced the destruction of the Constitution has no business being sworn in to uphold it,” Self said.
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According to an analysis by the Center for Renewing America, a challenge to a member-elect’s fitness to take the oath of office can be followed by the House speaker asking them to step aside while the debate begins.
“The objecting member should place the documentary record before the House, and the House should debate whether that evidence establishes that the member-elect remains committed to destroying the constitutional order,” the group’s analysis said.
The House would then vote on a resolution that “establishes the member-elect’s commitment to destroying the constitutional order,” which, if passed, could stop them from being sworn in.
The theory relies on a number of variables. For example, if House Minority Leader Hakeem Jeffries, D-N.Y., is elected speaker, he could decide to dismiss the challenge altogether. Speaker Mike Johnson, R-La., could do the same if he so chooses if Republicans keep their majority.
Johnson told reporters as much during an event this month in Iowa, calling the idea of him refusing to seat elected Democrats a “nonsense narrative” and vowing, “We are going to follow the law.”
It would also raise questions about challenging the will of the people who elected that person to represent them.
Such a move would also be in direct conflict with Supreme Court precedent, meaning it is virtually guaranteed to be relitigated.
The 1969 case of Powell v. McCormack ruled that the House cannot exclude an elected candidate from being sworn in if they otherwise meet the constitutional requirements of age, residency, and U.S. citizenship.
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It comes after Adam Clayton Powell Jr., then a senior lawmaker representing New York as a Democrat, was refused his oath of office by the House speaker after winning again in 1966. Powell Jr. had been embroiled in multiple financial scandals at the time.
The House then adopted a resolution barring him from taking his seat, a decision that was ultimately overturned by the Supreme Court.
But that has not stopped Republicans from considering the idea of revisiting the move.
Rep. Tim Burchett, R-Tenn., told the New York Post earlier this month that he would use the maneuver to try to block Darializa Avila Chevalier from joining Congress next year.
Chevalier, whose upset victory unseated a senior House Democrat, is from a deep-blue district and is almost certainly going to win her general election next week.
Burchett told the Post that he intended to declare her ineligible to take the oath over a now-deleted X post from 2019 in which she boasted about wiping her hands on the American flag because she did not have a napkin.
Whether the efforts succeed, the threats underscore the partisan rancor that’s taking shape even before the new Congress is formally selected in next week’s midterms.