As always, Ben’s note is sharp and on the surface feels like the right read of the situation. For someone skilled and informed below the surface, I’m sure there’s a lot more moving parts but taking it at face value its contents concern me. Greatly.
I just think it’s time to get serious and see that the long 10 year Trump-induced road the country is been on might be approaching a real stop. And for a while. And posts like this reinforce that.
My strong belief is that if the Republicans come anywhere close to losing the House because of Democratic Representatives from newly gerrymandered districts, Trump will declare those new Democratic members-elect in the 2026 midterms to be ‘illegitimate’ because of an ‘illegal’ state process (like abandoning the fig leaf of an independent electoral districting commission). And while the federal government has next to no Constitutional role in certifying Congressional elections or members-elect, I think there’s a pretty straightforward way that Trump could orchestrate a contested seating of the 120th Congress and force it to a Supreme Court decision.
The Constitution requires members-elect to take an oath of allegiance to the Constitution before they can assume office, but is silent on how or by whom that oath is administered. Federal law says that oath can only be administered to members-elect by the (new) Speaker of the House, but in the scenario I’m imagining both the Democratic caucus and the Republican caucus would take steps to elect a Speaker of the House for the 120th Congress, and neither caucus would recognize the other Speaker-elect as legitimate. We know who the White House would recognize! I know this scenario sounds crazy, but this is a pretty well-known rabbit hole that came up in the 118th Congress when the Republican caucus took several days to elect a Speaker and no one had actually taken their oath, and it’s certainly no less crazy than Trump’s Jan 6th premise that Mike Pence as presiding officer of the Electoral College could reject entire slates of electors on suspicion of ‘illegitimacy’.
Yes, the Supreme Court would eventually weigh in here, and I think they’d rule that a) the federal law requiring an oath administered by the Speaker of the House does not apply if it runs afoul of the Constitution, which in addition to requiring an oath also sets a date certain for the new Congress to take office, b) that if the law doesn’t apply than anyone – like a local notary, even – can administer the oath, and c) since the federal government has no say – none! – over state certification of Congressional members-elect, then the Democrats in this scenario would have the legitimate claim to a majority caucus and control of the House. But honestly, who knows how they’d rule!
More to the point, the Supreme Court can’t rule on this until it actually happens, so there would be a period of time in January 2027 where we would not have a 120th Congress at all. More crucially still, no matter how the Supreme Court ruled, broad swaths of the American electorate and one of the two most powerful executives in the country (the US President and the governor of California) would have very publicly rejected the legitimacy of the 120th Congress. At a minimum every state would take immediate action to disenfranchise its minority party voters to the nth possible degree in advance of the 2028 election, but I don’t think there’s any possible way that we’d even get to the 2028 election. Federalized National Guard units would already be deployed into major blue state cities as part of the federal crime bill that’s going to be enacted this fall, and do you think Trump would hesitate for one second to invoke the Insurrection Act? I don’t.