What Happens When the House Refuses to Swear in a New Member?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Jenessa: Well, we're just never going to tell you what to do, and we're going to ruin democracy. That can't be the answer here.

0:00:17 Jenessa: You are allowed to never seat people as long as you don't say a bad reason to exclude somebody. The next majority leader could refuse to see every single opposition member of the House forever. That can't be the answer, right? So there has to be a limit somewhere.

0:00:42 Matt: Welcome to Opening Arguments. I'm Matt Cameron, and with me is Jenessa Seymour, and we are talking about an unfortunately very relevant Warren Court case today in which the simple question is asked, what if Congress decides just not to let somebody take their seat? That would never happen, right?

0:00:54 Jenessa: Somewhere uh wonders never cease in

0:01:00 Matt: It's a good thing that I have an election law expert with me, Jenessa. What do you think about not having somebody seated?

0:01:00 Jenessa: 2025 once again we are up against the why did somebody not write into law you have to do this oh right because never in my wildest dreams did I imagine you would try to not do this it's so frustrating there's no basis in election law whatsoever to be doing something like this outside of some very clearly prescribed circumstances where you are actually challenging the validity of the election and that's not what's happening here so

0:01:38 Matt: Sure. Or the qualifications. Applications. If you could prove that somebody wasn't 25 at the time they were elected to Congress, or if they hadn't lived in their state, right, if they're actually a resident of a completely different state, and we'll get into some of that. But this case from 1969 we're going to be looking at is called Powell v. McCormack, and it features one of the most interesting people ever elected to Congress. I can't wait to tell you about him. He's actually just a classic kind of dirtbag that we love to talk about these days on Opening Arguments, very much along the lines of Timothy Leary, who we started this series off with, actually. A little good, a little bad. Certainly a pioneer and a radical in his own way, in lots of good ways, but also not always great to people. So we'll be talking about Adam Clayton Powell and how it came to be that the House of Representatives decided to try to exclude him from being sworn in at all. And of course, we'll be tying that into the case of Adelita Grijalva, who was elected by a substantial majority by her constituents in Arizona to replace her father. So, we will get into that and how that all fits in because the Arizona Attorney General, Chris Mays, is suing right now to get Grijala seated. And the only case on point is Powell v. McCormack from 1969. So I'll talk about how this case actually came about because it's pretty different from the Grijalva situation, although it does have some similarities. And then we're going to talk about, uh, how it developed and then sort of compare it now to what is going on with Grijala. So we've got a lot to talk about. I think this is a particularly interesting one. This is not a case, honestly, that would ever cross my radar if, you know, Mike Johnson weren't actually trying to do this. So here Here we are. Thanks, Mike.

0:03:04 Matt: Appreciate the episode idea because I actually really enjoyed reading about this one. So we'll get right back to it and we'll set this one up for you.

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0:03:14 Matt: Okay. Adelita Grijalva was elected to replace her father, Raul Grijala, a very popular congressman in Arizona in late September, which is just a few weeks before recording this. Now, by the time you hear this, maybe she's been sworn in. I don't know. We're recording a few days ahead of time. So if she has, then a lot of this conversation is moot. But at the same time, as of the time we're recording this mike johnson is refusing to swear here and making up all kinds of stupid excuses uh what do those excuses include just remind us right

0:03:40 Jenessa: There was some nonsense about once upon a time, Nancy Pelosi took a while to swear someone in who asked to wait a while, to be sworn in, which is obviously not analogous.

0:03:47 Matt: Which is yeah nope yeah

0:03:53 Jenessa: I that's it, it right I mean I haven't heard anything else substantial other than I'm busy I'm bored I don't have to like oh

0:04:02 Matt: Well he's also he's holding the democrats responsible because of the shutdown and he's saying you know we're in the middle of a government shutdown I have other things to do but the other things that to do don't include convening congress which would be a great way to try to you know get the shutdown resolved he's excused

0:04:16 Jenessa: Right just to make sure it's clear to everybody the shutdown does not shut down congress it shuts down many uh executive agencies and all kinds of government jobs not congress they can show up to work anytime they want they have to in order to pass a budget to end the shutdown like absolutely not oh

0:04:36 Matt: Them no yeah and they should be working something out and talking to each other right now, and I don't know what's going on, but they're not in session. They're in pro forma sessions, which are just what they sound like, as we discussed on Rapid Response Friday a couple of weeks ago, where they just kind of get the thing going, have a prayer, go home, but just keep it in session so that they meet their constitutional requirement for actually staying in session? Johnson has just kind given lots of stupid excuses. He's just got too many things to do, and he can't be bothered to swear this person in. And of course, as Weed discussed, and I think people know by now, she would be the 218th signature on the discharge petition that would release the Epstein files. That is almost certainly the motivation at this point, besides the usual Republican game playing and just not wanting to swear somebody in. There's a lawsuit pending that we'll talk about at the end that Arizona has filed to try to make sure that she's seated, that she can represent her constituents, because right now she has a locked out of Congress. She has no email address. She haves no staff. She haz no budget. She can't do basic constituent services. It's a pretty bad situation. So before we begin all the rest of this, I just wanted to review the basic requirements for swearing in and seating new members of Congress and the difference between exclusion and expulsion. Under Article 1, Section 5, each house shall be the judge of the elections, returns, and qualifications of its own members. That does seem to put the ball pretty solidly in the court of Congress to make sure that it swears people in and that it is only responsible for swears. And under 2 U .S .C. 25 and 5 U. S .C., 25, we have both the people who are allowed to swear somebody in, which is pretty much just the Speaker of the the House, or somebody that an act of Congress has designated to swear somebody in. And then 5 U .S .C. 25 actually has the oath. And that's about as much as we have. It's very, very rare in U. S. history that anyone has ever been excluded from Congress, that they pass through the election. They clearly meet the qualifications of being 25 years of age, lived in the United States for seven years and residents of their district. And they get to Congress and Congress says, no, you aren't one of us. Dozens of representatives were excluded at different times due to allegations of voter suppression and fraud on the basis of race. And there is actually a statute, 28 U .S .C. 1344, does allow district courts to review allegations that an election was won through voter suppression specifically in violation of the 15th Amendment on the basis of grace or prior servitude. So there is no other way that is in the law that courts can review. And that's kind of what brings us here to Powell. In U. S. History, I went looking. Only a few people have been excluded other than what I was just telling you about out for the race -related voter suppression. Brigham Henry Roberts and several other polygamists, Mormons, were excluded. There's nothing in the law that specifically allowed that, but there was an anti -Mormon statute, the Edmonds Act actually, that kept them out allegedly. Victor Berger was a socialist from Wisconsin who was convicted of the Espionage Act that was later reversed. But again, no clear basis for why he was actually kept out except they just didn't like him. And Adam Clayton Powell, who we'll be talking about. I think it's not a coincidence that the very few people in U .S. history who've been excluded, I don't mean expelled, I mean excluded from Congress, are members of persecuted minority groups. You've got a Mormon, you've got a socialist, and you've Got Adam Clayton Powell, who is black. So let's talk a little bit about Adam Clayton Powell. I'm drawing from a number of sources, including his autobiography, and I'm going to tell you straight up, I love reading autobiographies. I don' t take them as gospel. I do' n't take them as the authoritative source in anybody's life, because there's a good reason that Adam Clayden Powell wants to tell the story that he wants to to tell you. And I like Powell from a lot of what I've read about him. And he was awesome in lots of ways we're going to talk about, but he did have very much kind of a Trumpy kind of approach to politics into his life. Here's a paragraph from his autobiography, just to give you the taste. He talks about the committee that he was on, the Educational Labor Committee, very powerful committee at the time. It was a committee that produced more legislation without a single defeat than any other committee has ever produced in the history of the Republic. That's quite a statement. I don't know, maybe this is true, but it's a very Trumpy sort of thing to to say. He was very charismatic. He was the first Black member of the New York City Council, the first black congressman from New York, actually the first white congressman from the Northeast, I guess, to be elected.

0:08:39 Matt: I think Massachusetts had the first black senator for sure. He represented Harlem for 26 years, from 1945 to 1971. He was a radical, and he was somebody who was left of MLK, criticized MLK criticized the Voting Rights Act, criticized the Civil Rights Act thought it was all too milquetoast, thought that there should be better moves on black power, and that they should be more out there. He not only criticized Martin Luther King Jr., he actually tried to blackmail him at one point yeah I'm telling you this guy's a dirtbag in many ways in the summer of 1960 this is actually from an mlk an official mlk website Powell threatened to tell the press the king was involved in a homosexual affair unless king called off plans demonstrate at the upcoming dnc yeah

0:09:15 Jenessa: Dear okay so like triple gross don't yeah oh

0:09:21 Matt: Yeah yeah and king actually gave the most martin luther king response you can imagine to this which was I have always vigorously defended you against your most severe critics. In spite of all, I will hold nothing in my heart against you and I will not go to the press to answer or condemn you. In the developing civil rights split between the Malcolm X types, the MLK ideologues, he was very much on the side of the Stokely Carmichael, Malcolm X side of things. So the question that that is a lot of what got him into the trouble we're going to be talking about. There were plenty of corrupt people in Congress. There were plenty people that were doing things that were very similar to what he was doing that didn't get the kind of attention he did. You can imagine somebody who's basically an anti -racist firebrand who just comes into office unwilling to compromise, taking on black power positions in the late 60s, right? This is tough stuff. This is a very difficult thing for Congress to take on at the time. And it's not his fault. It's really their fault. But just to give one example, John Rankin from Mississippi, a very famous racist in Congress, was very concerned about his election and did not want to have to sit anywhere near him. Powell would go out of his way to go sit near him. There was one time when he made him move five times in a day just because he just literally didn't want to sit near.

0:10:33 Jenessa: My god all right it's really childish ish.

0:10:37 Matt: Yeah, it is. Yeah. Powell also, his ancestry was not entirely African -American and he did have a European ancestry and he passed actually all the way through college. He'd passed as white basically. He had an interesting relationship with his own race, but he certainly was beloved by Harlem. And he was certainly, no question he was black. I'm not saying that, but I think that might've been one of the reasons for his success is that he was lighter -skinned and passed his way for parts of his life.

0:11:05 Matt: We talked a little bit during the Rapid Response Friday episode about this, but I didn't have the background that I needed on Powell. And I understand him a lot better now, I think, after reading his autobiography and reading more about the congressional record. I actually read extensively from the congressional recorded where they were trying to exclude him and what happened. There's so much great stuff about him. I just wanted to mention he was married to a number of people. I mean, quite a lot of different women in his life, but one of his most famous wives was hazel scott who was a very famous jazz pianist the first black american to have her own tv show and I just wanted to see what you thought about this as a neuro person it's like a sick person they ended their relationship because of a rorschach test but this was the height of the Rorschach test the inkblot test which I'm sure is I assume is no longer considered to be scientific right

0:11:53 Jenessa: My God. Yeah, I'm not aware of any like, I don't think so. I haven't kept up to date on. God.

0:11:55 Matt: They're not using it anymore so I mean as far as I know but I guess when they went to seek professional help, they were told that they should take Rorschach tests. I guess that was how they were doing couples counseling in 1966. I don't know. But yeah. So he completed the test and he claims that the result of the test was that the Rorschach showed that he had great love for people and individuals as long as they served them en masse.

0:12:23 Matt: He and his wife both realized that he wasn't really cut out for monogamy. So that was the end of that relationship.

0:12:29 Jenessa: That's the interpreter. Oh boy. Yeah.

0:12:31 Matt: But maybe not so much monogamies. She was starting to realize that he was committed to his career and she wasn't going to be with him. Just an interesting note about the Rorschach. I had to throw that in there for you.

0:12:41 Jenessa: There is some extreme use for it. I had a clinical psych professor who was like, here's what you can do with it. If you have a patient come in and you show it to them and every single one, they're like telling you they're seeing something violent in it, that probably tells you something. But no, absolutely not as a personality test or anything like that.

0:13:02 Matt: He was getting more and more enmeshed, I guess you'd say, in scandal. There were a lot of accusations about misuse of funds. He Was the chair of this very powerful committee. He was throwing around money and plane tickets and an allegation at some point his son was using congressional plane tickets, his wife, various women in his life were getting paid. Again, probably not doing things that a lot of other committee chairs weren't doing at the time. But the thing that really took it over the top, as we discussed in the episode a couple weeks ago, was that he was trying to crack down on illegal gambling in New York City. And in a TV appearance in 1960, he talked about a woman named Esther James, who was a domestic worker in Harlem of Puerto Rican descent, and called her a bag woman who delivered payoffs to the officers of Washington Heights. I did not read enough about this case to know why he did that. She was 64 years old, church -going grandmother, and she had been trying to help crack down on crime in her neighborhood. She'd reported so much crime at one point that a gambler shot her in the foot. She had like a permanent injury from this. She just wanted an apology. And when he wouldn't apologize, she sued him for a million dollars. She got this lawyer who I want to shout out very quickly, Raymond Rubin, who took on her case. And this is from the New York Times obituary of Raymond Rubin. I wanted to read this because this is incredible. The James V. Powell defamation case was probably one of the most torturous such cases ever tried in American courts. In the period of almost 10 years it was in litigation, the legal papers added up to a stack well over 20 feet high. More than 80 different judges sitting in 10 federal, state, and local courts heard aspects of the case, many of them several times. Three juries, totaling 47 individuals, including a grand jury of 23, have sat on the case. Also invited were the FBI, the police department, the district attorney and a score of individuals banks and others it just keeps going this was all so he could try to get out of this judgment it went back and forth and up and down at one point he's only showing up to his district on sunday because at the time under a civil contempt order you couldn't be arrested on a sunday so

0:14:55 Matt: This eventually became a criminal contempt order he did eventually reach a compromise and then he used I guess somehow I don't know how he was able to do this but using fundraising maybe it wasn't campaign fundraising it must have been for this purpose but he was unable to pay off the judgment and fundraising it was 40 something thousand in the end. But I mean, you can imagine at this point, he is reelected and he's already been in Congress for something like 24 years. He's enormously popular in his district. He walks in and he has got a criminal contempt order out for him, which means he is going to be arrested as soon as he sets foot in New York. So you can see how this is starting to push the limits of what the House of Representatives can accept. He is already very unpopular in the House, even amongst Democrats, even among lefty Democrats, because he is very flamboyant. He gets in a lot of fights. He's a very smart guy, but kind of a dirtbag as established. This is the kind of guy who would threaten to blackmail Martin Luther King about something that just wasn't true, let alone try to blackmile Martin Luther king. I guess that's kind of the stopping point there. So I went to the congressional record and I read up on this because it's extremely relevant to what happened in this case and to how we can compare it to Grijalva. And there was a very long debate in the congressional report where they went back and forth about this. Now, Mo Udall was leading the Democrats in saying that we should seat him because obviously the the constitution requires us to seat him. And the idea was that maybe we can have an inquiry. We can set up a select commission. And if we find that what he's done is bad enough, then we can expel him. Plenty of people have been expelled from Congress and the constitution allows it by a two -thirds vote. But obviously there wouldn't be much point to having this provision in the constitution if you could just expel people by just never having them sit down. If you could just have a majority vote rather than the two -third vote of people in Congress to say, we don't want this person to be seated.

0:16:32 Matt: At this point, he'd already been stripped of his committee, which was the thing that, you know, was really the most important thing in his political career. So Mo Udall points out, he's not going to be the chairman again. He's not going to have any kind of oversight over committee funds. He is not going to throw money around like this again. His wife is off the payroll. He says, how much more do we want to do? How much more should be done? Are we going to kick a man when he is down? Are you going to go beyond that without a trial and deny him a seat in the house? Let me make clear that it never again will the things I referred to be done by this member, whether he is seated or whether he not. Is the action which our Republican friends have proposed an action to take further steps without a trail? And he goes on to explain, of course, us about how there's 450 ,000 people that want this person from Harlem, to want this person to be in Congress. And he deserves to be on Congress. This was a lot of back and forth. I thought what was really interesting was that Gerald Ford at the time was actually leading the Republican charge to not seat him and saying that basically this conduct was so far outside where we can accept that we can't seat him. And they're not even really trying to claim that the law allows them to do this. They're just saying they don't want to do it. They voted at that point against seating him. They kept him excluded and they sent this on. He was literally there ready to be sworn in. They made him stand to the side and then leave.

0:17:35 Jenessa: Curious about this. So as opposed to like just not swearing him in they had a debate and a vote like a vote on what motion or oh I understand

0:17:44 Matt: Yeah, essentially, what they set up was a select committee to investigate whether he should be allowed, right?

0:17:52 Matt: This is in January, January 10th, this congressional record item I'm talking about. This committee is set up, and it releases its results in March. And it says, you know, what we should do is fine him, but admit him, censure him, right, we can censure them with a fine, we Can say this isn't appropriate, we make sure he doesn't get another committee seat, whatever, but the recommendation was that he be sworn in. So the House rejects this, 222 to 202, and they amend the resolution the committee had proposed, and they came back saying that he should be straight up excluded, and that we're going to notify the governor that there's a vacancy and we have to have a special election, which is what they did. So they went back to Harlem, had a special selection, and Adam Clayton Powell was re -elected seven to one in his special election. He was very proud of this, as he should have been. The people of Harlem wanted him to be, and this took this personally. The Black community also, like generally speaking, the Black community got behind him. According to his autobiography, he became, quote, a symbol for blacks everywhere. I don't know if that's really true, but he did have quite a lot of people in his support. And I did want to put in this word here from Reverend Jefferson P. Rogers speaking at a rally for him. The only reason Adam Clayton Powell draws this kind of attention is because he is a Negro and wields power like a white man. And that's true. He was acting the way that white committee chairs have been acting the entire history of the country, no doubt. I think a little more flagrantly in lots of ways. He also didn't show up to vote a a lot. He was on vacation quite a lot, out of the district a lot." That was one of the allegations. There was briefly an allegation that we need to do some math and try to figure out if he's still a resident of New York because he's spending so much time in the Bahamas where he had a house.

0:19:02 Jenessa: Oh no autobiography

0:19:24 Matt: So he was living pretty well. The chapter after, in his autobiography, I just want to point out, the chapter after the plot of 1966, which is how he describes everything that is going down in this story, is basically a chapter about all the women he's been with and how much he loves women. It's really ill -advised. I really don't think that he had an editor, or at least a very very good one.

0:19:42 Jenessa: Wrote this himself okay all right

0:19:42 Matt: Yes. Is that a biography? Yes. What he wants you to know, including women whose names he doesn't remember their last names. Yeah. It's a very entertaining read, I have to say, but very unexpected. This goes up to the DC Circuit because he brings a lawsuit to say that he should be sworn in and seated. What they do is, I think kind of at first glance, this makes sense. So the DC circuit in short finds that this is a political question. This is a classic political question, which is a legal doctrine that says that if you're asking the court to to decide on something that's properly within the realm of another branch of government, they can't touch it. That makes sense on first glance. So let me just read you a little from the holding here. You can get the idea. This also has one of the funniest things I've seen in a judicial opinion in a long time, and I have to share it with you. Here's the serious part. That each branch may occasionally make errors for which there can be no effective remedy is one of the prices we pay for independence, the separateness of each co -equal branch, and for the desired supremacy of each within its own assigned sphere. That's kind of funny in itself. That'S not the funny part, but I think that's funny that they're just like, yeah, we all make mistakes and we got got to put up with mistakes from the other branches sometimes. And there's just some things we can't review. We can't look at all these hypotheticals. We have to show that Congress, as long as they're saying that somebody can't be seated, we can'T really question that because it's up to them. We CAN'T compel them to do anything. And that is an important part of this. And in the Grijalva case too, because they were trying to say that you have to make him be seated and they're sayING, we CAN do a declaratory judgment, maybe, but we CAN'T actually compel Congress to do anyTHING. And here's the funny part. They basically are like, let's try to to think of a hypothetical where maybe we might want to step in. If we could suppose the members of these bodies so far to forget their high functions and the noble instrument under which they act is to imitate the long parliament in execution of the chief magistrate. If the Congress ordered the execution of The Supreme Court, the chief justice of the Supreme Court

0:19:49 Jenessa: No wait literal execution oh okay my themselves

0:21:34 Matt: Themselves, they bring up the example of the long problem in England in the 1600s about the extremities of of that. And then they go straight to the French revolution. Or to follow the example of the French assembly and assuming the function of a court for capital punishment, we are not prepared to say that such an utter perversion of their powers to a criminal purpose would be screened from punishment. We might do something.

0:21:55 Jenessa: I mean we did just get the presidential immunity case where they wouldn't say to Sotomayor that he can't just shoot someone dead in the street.

0:22:04 Matt: Or his political opponent, he just can't seem to kill his political opponent. And so here they are saying, yeah, yeah. Maybe if Congress executed the chief justice of the Supreme Court, or if Congress started doing actual French revolution stuff and just guillotining everybody it wanted to.

0:22:09 Jenessa: Yeah. So, you know, maybe we'd step in. Cool.

0:22:21 Matt: We might think about him. I thought that was kind of funny.

0:22:26 Matt: Then it gets to the Supreme Court. And what's interesting about the point at which it reaches the Supreme court when it gets the Warren court in 1969 is enough time has passed that Adam Clayton Powell has already been reelected. And the Congress, the 90th Congress that he was part of has now been adjourned and it's going to be the 91st Congress. So he's going to be sworn in to a new session of Congress, which means Congress has to decide again, whether it wants to exclude him because that doesn't carry over. And he's basically been been taking a couple of years off. He was reelected and then not able to sit. So he's just been hanging out in the Bahamas doing college lecture tours. And he'll be looking for his back pay later, but he's not getting paid by Congress. This is in front of the Warren court and they're reviewing this DC circuit decision in which DC circuit has found this is a political question. We can't touch it. This up to Congress to decide. So they review a few different challenges here. The first being mootness, because obviously the defendant who in this case is John McCormack, who is actually the Speaker of the House from Boston, very famous, actually the post office, the old post office around the corner in Post Office Square, where my office is, is named after John McCормick. The defendant's coming back and saying this is moot because he's already been reelected. He's about to be sworn in. It doesn't matter anymore, which usually would be true. But

0:23:34 Matt: The Warren Court makes the point that he's actually seeking back pay as part of this. And so because of that, there's still an issue. There's a live issue here about whether or not he should get his back pay.

0:23:40 Jenessa: It matters if he should have been seated back then.

0:23:47 Matt: Right, right. That's how we determine whether he gets his back make pay or not. They tried to claim total immunity through the speech and debate clause of the constitution, but the court notes, we're not going to make you do anything. We're just going to be seeking a declaratory judgment. That's what we're looking for here. And so since we can't make you anything, we'RE not violating your right to speech debate. And that's not what this is about anyway. This is a justiciable question because this is not necessarily a political question where there's a textually demonstrable constitutional commitment to having one branch of government just do the one thing. This Is a constitutional question because what you're saying is that you don't have to seat him, even though the constitution says you do. And I don't know, that's, it works. It works well enough, I guess. There was some criticism at the time, but the holding is pretty simple. The constitution leaves the house without authority to exclude any person duly elected by constituents who meets all the requirements for membership expressly prescribed in the constitution. If you're 25, lived here for seven years, are a resident of your district, then you have to be seated. If You want to go ahead and censure him or try to expel him or go through the process after that, you can do it. And that makes a lot of sense. Honestly, I think this is a clear, simple holding. I'm glad they got to it. I am glad they didn't say it was moot. I know that nothing like this has ever happened since, like nothing actually like this. As we discussed up top, Mike Johnson is just stalling. He hasn't actually come out and said he is not going to seat. And there was a lot stuff on the record that the courts could look at to determine why Congress did this. I think they knew at the time that they weren't really supposed to do this, but they just didn't want this guy in Congress. So that is pretty much sure this came down to. And that is what Powell v. McCormick is all about. So let's take a break and come back and talk about how it's been applied since then, because obviously this is a very unique situation. Nothing like it has happened since. But let's talk about the law around Powell v McCormack. We'll be right back.

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0:25:36 Matt: So, Jenessa, after 1969, I asked you to take a look and let me know, how has Powell v McCormick been used? What do we see? What are the themes?

0:25:46 Jenessa: It's interesting how it's come up, because like you say, we have not had another individual say, I am not being seated in Congress, I should be seated in Congress, and asked to either re -adjudicate the same question or a similar question, it is being cited a lot. There were over 11,000 citations in Westlaw to this case, so it comes up a lot, and it centers around a couple of different things. One is that question of justiciability. So it is being cited to in a positive way for the definition of like, where is that line? There's a really good definition I liked here. This is a case out of the District of Columbia in 2015. The House of Representatives tried to sue Health and Human Services and the Treasury over the Affordable Care Act because why not? It did not work out for them. But in the question of can the House sue the executive, when they were talking about, hey, first of all, jurisdiction and standing, that is a separate question from justiciability. One is a legal issue with rules, and justiciabilty is more about carefulness and being thoughtful about whether we should intervene. It's not that you can't. It's whether we think it's a good idea. They give us a definition for justiciability, whether the structure of the federal government renders the issue presented a political question that is not justiciable because of the separation of powers among the legislative, executive and judicial and judicial branches, whereas jurisdiction is going to govern the court's authority to hear a case. Case, justiciability pertains to the advisability of hearing the case. So that kind of citation comes up a lot. Powell being cited in 2015 for that purpose, and there were many cases that used it for that, in a positive way to say that Powell properly drew the line for what is justiciable and what isn't. Similarly, like you talked about the speech and debate clause, It's getting cited for that quite a bit. So there was one Eastland versus the U .S. Servicemen's Fund. The House was trying to send out some subpoenas and the Serviceman's Fund says, hey, we think you're going to get at private information. And the court says, actually, we're not going to step in here. This is within Congress's power. Why is this not a violation of Powell? Oh, you know, Powell saying that we can step in. We can tell Congress what to do because the question in Powell was this was outside the sphere of legitimate legislative activity that, yeah, if it was within that sphere, if het was within the speech and debate clause, you would have total authority as Congress. But the question of subpoenas in that case was within Congress's authority. So again, getting cited as no, Powell was this example where it was outside of Congress's authority. You're bringing it up, trying to say this is outside of congress's authority, but it isn't. So we're seeing a lot of things where it might seem like it's limiting Powell, but I would argue that it isn't, it's distinguishing it in a way that really upholds it. The two that I think are probably the most relevant, U .S. Term Limits, Inc. v. Thornton, a state passed a law that tried to set term limits on Congress. So this is right on track with the question of, can you put more qualifications on Congress than what the Constitution allows? And this was in 1995. And they said, no, absolutely not. You cannot do this. And they cite to Powell extensively and say, what we held in Powell is the Constitution enumerates the only restrictions on qualifying to go to Congress. And you, the state, are trying to put more qualifications. You cannot doing that. Those are the only ones. They emphasize a couple of important points in there that it was, first of all, the individual harm that Powell had, but also the enfranchisement of his voters. It's not just enough that they got to vote, but you vote for a person to get represented. So it was important to the fundamentals of democracy that voters get to pick a person and that person gets seated and thatperson represents you. And that's what Powell stood for. So this is in 1995 saying Powell was good law and we are continuing in that theme. You cannot, as the state, put more qualifications. The state kind of tried to argue that was really limited to Powell personally and some really narrow facts of that case. And they say, no, you're interpreting Powell way too narrowly. It was a fundamental part of our holding that congress can't add qualifications and

0:31:31 Jenessa: We are going to continue on that theme right

0:31:34 Matt: What they're saying is that Article 1, Section 5 doesn't even really apply why, because they weren't acting anywhere within Article 1, Section 5 when they excluded Pell. What they were saying was that they didn't think he was qualified because he had all this dirt on him, but that's not how qualifications work. The Constitution has those qualifications. You can't remove them. You can add to them. And when it says that it's the sole province of the House to determine if they're qualified, it just means those written down qualifications. So that makes sense that you can't add more by legislation.

0:31:59 Jenessa: You determine if they're qualified not what makes them qualified we got another one this was listed in west law as the most negative treatment and and it's really not negative at all, I don't think, is declining to extend Powell to a very silly case where a guy who was elected trustee to the board of the Houston Community College System. Some reporting, while he was on that board, he was airing concerns and interviews and on a website. Okay, maybe that's fine. He sued the system board that he was in, orchestrated robocalls and hired private investigators to look into whether another trustee had lied about where she lived. So at least a little disruptive. The board ends up voting to censure him, which I always mix that up with censor where somebody would stop you from speaking. It's censure where you get in trouble for what you said.

0:32:56 Matt: Right. Right. Because he's clearly wasting everybody's time here and just being an idiot.

0:33:04 Jenessa: Right. And you can't be on the board and like aggressively attacking other members of the board in public. And it's either be on the board or challenge the board. You kind of can't do both. He tried to argue that this was a violation of many of his rights, including that they should apply Powell here. He was qualified He was elected. He was seated. And that's the end of it. And you can't be censoring me. And a unanimous decision from the Supreme Court in 2022, authored by Gorsuch, is like, absolutely not. Where are you getting this from? And repeats Powell and quotes Powell pretty extensively to say what we were saying there again is when somebody is duly elected you have to seat them unless they're not qualified these are the enumerated qualifications we very explicitly said there are other forms of discipline that are fine, such as expelling the person after they're put into office. That's what's happening here. You got into office and now you're being censured. You're being disciplined for what you're doing in office. So this is exactly Powell and it's not helping your case at all. And we will continue in that vein. So I think that one's really on point for 2022 2022 unanimous court three years ago written by Gorsuch probably the most helpful to say this court is not it's quoting Powell it's not deeply questioning the thought process Gorsuch of all people would be the one to take a dicta -like dig at

0:34:56 Jenessa: Powell and say well I don't I think that was non -justiciable if he thought it he probably would have said something you know not necessarily but that's my suspicion. Yeah, we've got quite a few like that where it gets cited for tangential reasons or they say, well, your case isn't like Powell because, but they don't go on to say because Powell is exactly narrowly tailored to his exact circumstances or because Powell's not not good law anymore. It's really just distinguishing that there is a difference between when you have to follow a certain law and you're not following it versus things that Congress is entitled to do, like censoring somebody that seems pretty obvious these are distinguishable. So yeah it seems like to me uh powell's holding up pretty well and uh continues to be applied in modern cases pretty regularly

0:36:02 Matt: Yeah, I think by contrast, too, if you take a case, I remember from law school, there was Nixon v. U.S., not Richard Nixon, but Judge Nixon. Obviously, Nixon v.-U .S. was the Nixon tapes case, which was unanimously against Nixon. But that was in 93, they were reviewing the impeachment by the Senate of a federal judge, and I believe he was involved in some kind of corruption. And he was trying to get his pension because obviously once you're impeached, you don't get to get your full federal pension. And that's a big deal because for a judge, your pension is your entire salary. So you really want that. That was a case in which that was a classic political question. No question. Because the court was being called upon to review impeachment proceedings, which are completely up to the Senate. It. Like by the terms of the constitution, whatever they want to call impeachment, they can do it. They can just make it a trial. It doesn't even have to be under oath. It isn't have to have a two thirds vote, right? It just says that they have to try them and that they have the sole power to do it, right. So they could try them by combat if they wanted to, I guess. I don't know. I mean, right,

0:36:58 Jenessa: Right yeah and that exact case came up in the term limits case they cited to nixon and they said this is if you want to distinguish the difference Powell there's a rule they're not following it Nixon there's a rule it doesn't lay out a ton of specifics and they're behaving within the bounds of the specifics the lack of specifics so it's fine that's the distinguishing factor here between Nixon and Powell and the term limits case

0:37:38 Matt: In the Senate has final authority to decide what a trial is, but the house does not have final authority just like the qualifications for office. The constitution says that. I think that's a pretty good way to distinguish it. Yeah, I thought this was interesting just as we look ahead to what could happen with this lawsuit. Now, this is different, obviously. But I did want to also note, did you come across the Morgan v. U .S.? I was just kind of looking around this a little bit myself.

0:37:58 Jenessa: I don't think I have that on my

0:38:01 Matt: And it's when Scalia was on the Court of Appeals. Because there are actually a number of these things where the House was trying to challenge elections under themselves, getting kind of more into your world here. There. There's a famous case with Frank McCloskey, a Democrat who won, that the House found at least when they did their own investigation. And apparently this happens rarely. It was the first time in 22 years they had done this. But instead of just accepting a state recount, it is possible for the House to put to their task force and investigate election and see how it went for themselves. And in this case, they determined that this was possibly the closest congressional race in US history, that he won by four votes out of 230 Four votes. Never say your vote doesn't matter.

0:38:39 Matt: Scalia affirmed the district court and said, look, this is like, if they want to find that, we can't get involved. So a bunch of Republicans were coming in and trying to say that he should declare the report void and issue an injunction, again, to force the seating of the Republicans or the Democrat. And this to me is, again—and this is a classic political question— they're not determining qualifications for office. They're just determining if he was properly elected.

0:38:34 Jenessa: Let's absolutely right

0:39:00 Matt: In the same way that, you know, if there's an allegation that you used racist voter suppression, there's a statute for that that allows that kind of review, but we don't have anything like that.

0:38:59 Jenessa: Right and I think you could say something similar here a sort of implied qualification for office is that you win the election and if you can show they didn't win the election that is congress properly acting within their power to decide, did you win? Because if you didn't win, we're not going to seat you. You don't get to just show up and declare it, right?

0:39:36 Matt: Sure. Right.

0:39:36 Jenessa: So I think that would very reasonably fall within Powell. That is when it reaches Congress's authority to make the determination if you met the qualification, not what the qualification is.

0:39:50 Matt: If you're entitled to office. And especially in this case, where essentially Scalia's decision would decide which person goes into office, right?

0:39:58 Jenessa: Right.

0:39:58 Matt: He's like literally between these two and I can't be doing that, right. That's not a judge's job.

0:40:03 Jenessa: Not until the year 2000, then I'll do it hmm

0:40:04 Matt: Yeah, right. Exactly. Thank you. Important distinction. It was 14 years away. So yeah, I thought that was a good distinction as well. And this is the thing, I guess, is I've seen a couple of stories now saying that it's unlikely that this lawsuit from Grijalva is going to work. So let's come back and talk about this lawsuit a little bit and what we think after reading up on Powell.

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0:40:27 Matt: So all the way back on October 24th in Rapid Response Friday, we talked about the GrijALVA lawsuit and its state of Arizona and Adelita GrijAlva, the U .S. House of Representatives. And to try to get a D .C. Circuit Court to impose a declaratory judgment to say that she should be sworn into office and a declarator judgment saying that someone other than Mike Johnson should be able to swarm in if Mike Johnson refuses to do it. So in this lawsuit, they cite really only one case, and that is Powell v. McCormick, the one we just talked about. They cite the holding, which says the Constitution leaves the House without authority to exclude any person duly elected by constituents who meets all the requirements for membership expressly prescribed in the constitution. It seems pretty clear-cut to me now I understand that powell was a very different situation where congress affirmatively said we're not going to do it and they had an entire committee that looked into it and then they had a resolution that specifically said that they weren't going to seat them none of that has happened here but I still don't understand why they couldn't get a declaratory judgment based based on Powell, to say that they have the right to say that Congress has to seat people.

0:41:35 Jenessa: Now the easiest way to conceptualize it is if we have a decision saying these are the only reasons you can refuse to seat someone surely no reason at all cannot be on the list it cannot be a quantum superposition of unable to do anything until you give me a bad reason You know, like, it's not a reason. These are the only reasons. It's not on the list. I don't think you should have to wait until they give a bad reason. It is not one of the reasons, right? Right. Probably the bigger obstacles are going to be, in my mind, Powell was you should have seeded me and I would like my back pay. This one is you should seat me now.

0:42:26 Jenessa: So we are asking for a different action. Right. And the other problem is going to me getting around this denial presumably that will persist of no, no, I'm going to do it. I'll do it eventually. Oh, at some point, that is not plausible. At some point that is pretextual, you know, similar to our well, if you execute somebody will step in there has to be a line, right? What if he doesn't cedar for 100 days, 200 days, like there has to be a line where you're going to say, I don't believe you anymore, you're never going to do it.

0:43:03 Matt: I think that's why the ask is just so weak here. I mean, when it comes down to it, in the prayer for relief at the end of the complaint, they want a declaratory judgment stating that she shall be deemed a member of the House once she has taken the oath. Well, it shouldn't be. Shouldn't really need a declarator judgment for that. That. And then B, issue declaratory judgment stating that if Speaker Johnson has not administered the oath, the oath may be administered by any person authorized by law to administer oaths. And as we talked about in the show, that's not really authorized by 2 U .S .C. 25, but as we've also discussed, I don't care. Somebody ought to do it.

0:43:34 Matt: But they've learned from the past cases, because there've been a number of these cases, including in the Scalia one I was telling you about with Morgan, where the courts have been very clear, we can't command them to do It. We can just say that this is how it should be done. And declaratory judgment is just sort of settling up a dispute and saying, this is what the facts are and this is how the law should be applied.

0:43:50 Jenessa: As an analogy, there's a case in New York that I think is informative for how to think about the way judges can interact with other branches of government and be very, like, lowercase c conservative about telling them what to do. And it was an election law case where a county board of elections placed all of the early voting polling places outside of the largest city in the county. And they were off of public transportation routes.

0:44:21 Jenessa: And everybody was like, it kind of sure seems like you're trying to make it so that people who live in the city who don't drive cannot get to the early voting polling places. And it's really hard to imagine why you did what you did other than that. And ultimately, the way the judge explained it was this. I don't normally step in and tell you how to do your job. You are presumptively doing your job the right way and you know better than me where to put a polling place, what does it mean for there to be a presumption? It's not that we'll never question you. It is the burden rests on the plaintiff to show that you did not act within your wide latitude to do your job and to do it with your expertise and your discretion. Once the plaintiffs showed that within reason that like Like, it's really hard to come up with any reason why anyone would do this. And this is breaking a number of election laws. Otherwise, the judge shifts that burden onto the county board and says, OK, I am not asking you to prove to me that these are good locations. You don't have to prove that. You don' t have to have to show me that they're in locations I would have put them. It is very simply, you didn't put them there for illegal reasons. So you can't tell me, oh, it was purposely to disenfranchise the black residents of this city. That would be illegal. And you canít give me something that is completely arbitrary and capricious. I need you to just give me a reason that is related to elections. And they couldnít. They had no logical explanation for their behavior. And the judge was like, okay, well, this is one of those rare instances where I'm going to step in and tell you, you have to put your polling places in a different location.

0:46:09 Jenessa: This is nonsense. You can't even get over this lowest bar of just telling me why you did what you did. So I think there's a good analogy there where we have a judge stepping in to tell a local agency what to do, where they normally would try very hard not to do that. You can put up similar boundaries to say, hey, I'm going to presume if you're not doing it, if you're not swearing somebody in, I'm sure there's a good reason for it. Now, if the plaintiff can show me there is no good reason for it, I'm going to come ask you, can you give me any reason for your behavior? I don't have to like your reason. I don't know if to agree with your re can you just like, say something not pretextual and like remotely rationally related. And if you can't do that, maybe then it's okay. Maybe then it justiciable and appropriate to step in. I'm not saying like, oh, this is the only right way to do But just as an example of how a normal court could behave when branches interact, like, it's not as if the only answer is, well, we just can't tell you what to do, which is kind of the way Ruscio handled political gerrymandering, for example, of like, well we're just never going to tell you you what to do, and we're going to ruin democracy. Like, that can't be the answer here, that you are allowed to never seat people as long as you don't say a bad reason to exclude somebody. The next majority leader could refuse to see every single opposition member of the House forever. That can't be the Answer, right?

0:47:49 Matt: It can.

0:47:50 Jenessa: So there has to be a limit somewhere.

0:47:52 Matt: Absolutely. And, you know, actually on my side of things, it makes me think of the Mahmoud Khalil situation in which Khalil's being alleged to present potentially serious adverse foreign foreign policy consequences to the United States. That's under provision of the Immigration and Nationality Act. Essentially, the Board of Immigration Appeals in the one decision, it's a very similar kind of thing, actually, where they have one decision on it. And they found that, well, as long as the Secretary of State writes a letter to say that this guy poses a serious threat to our foreign policy, we have to just take it. We can't really even look behind the letter. I mean, we're reaching the limits of that, obviously.

0:48:24 Matt: When you personally are proposing foreign policy issues because you're organizing students in a protest, that's really what it's going to take. There has to be a higher court review of that. And the one actually published case on this, it actually was struck down, this provision of the previous version of it. It was by Alito. They've actually struck it down. It's a good one. It didn't matter. It ended up being moved, but there have to be limits to political questions. The limits shouldn't have to start when you have the chief justice of the United States executed. So I think, yeah,

0:48:51 Jenessa: Yeah. That's just obviously too far a line, right? I think that's similar here. The line cannot be here of letting this go on forever or, God forbid, letting this go on until, what if it was just obviously pretextual, we're going to wait until some really important vote on some really importante bill that's going to stall in a tie without your vote and I'm going to purposely not swear you in until the end of that. Like, do we really think we have to allow that behavior? I mean, there has to be a limit, especially when I'm talking about like pretextual, you know, making up a reason that is obviously not the real reason. One of the things Johnson has said is like, oh, we're out of session right now. The two people he swore in after those Florida special elections that was on April 2nd, Tuesday, April 1st, is the day that he halted the entire House to try to avoid a vote on proxy voting, the idea that new parents could vote from home for like two whole months, God forbid. He shut down the House for like a week to try and prevent that vote, and on day two of we're only doing, oh, show up, say the pledge, go home, we're not voting on anything, then they swore in those two new representatives so like

0:50:18 Matt: Well, of course that did. Yeah.

0:50:19 Jenessa: This is obviously pretextual and it would be very easy to show that to a judge well beyond any abuse of discretion standard

0:50:25 Matt: Yeah, based on his own history, His own history this year. No, that's a great point. And again, you're an election law expert. You're not necessarily an expert on this exact kind of question. I'm certainly not either.

0:50:42 Jenessa: I don't know that anybody has this has never happened yeah

0:50:44 Matt: Yeah, right. Because I've seen more than one story saying this is unlikely to succeed. And I think that would be true if it were not a declaratory judgment, if they're trying to force them to do anything. Thing. But to just get a judge to say she should be, and somebody else should do it. I mean, that's the hard part, right? Is getting somebody else to do it under two SC 25. It doesn't seem like anybody else can do it unless Congress actually specifically tells them to do that. But again, just as a basic thing, getting a court to review all of this and to review Johnson's behavior, having the house of representatives send a lawyer out to have to defend them in court, all of that has a lot of political value. And I think it's really good they're doing it.

0:51:24 Matt: And if it were to get up to Supreme court, because the court to a judgment certainly are appealable once the issues are final. If it gets up to the Supreme Court, then I don't know what would happen. I don' know. I mean, there's a good chance they might just say this is different from Powell. They may say they can't review it.

0:51:36 Jenessa: It's important to distinguish like what we could hypothesize a normal court might do and what this court is likely to do. Because, like, we know Alito and Thomas are just in the tank for whatever is going to help Trump. And Roberts is a coward and will call everything a non -justiciable political question because he doesn't ever want his name in a history book somehow, despite being a Supreme Court judge. Judge so like I have deep concerns that this court would just decide hands off on even the most extreme questions but a normal court yeah you would think at least especially if you said this is not a writ of mandamus we're not trying to force you we're telling you obviously under the law this is the truth and you're all adults and you need to figure it out like that seems like Like, it should obviously be upheld.

0:52:30 Matt: I would think. And I also have to point out, I just realized this as you're saying this, if we get to the point where we go all the way through a district court process and we get a declaratory judgment and it gets appealed to the supreme court, that's a lot of time. We're in the middle of a national crisis. Yeah. Like there's something else going on in this country. We are definitely in a serious national crisis if she has not been sworn in. And if Mike Johnson is allowed to just keep dragging his feet for that much time,

0:52:44 Jenessa: Yes, there will probably be a new election by then.

0:52:56 Matt: Because he doesn't want the Epstein fellows coming out. So let's just hope it's all moot by the time this comes out.

0:53:01 Jenessa: Fingers crossed.

0:53:01 Matt: And this has all just been an interesting intellectual exercise, but I appreciate you doing this exercise with me. And THIS is a good excuse to take a look at a case that has become surprisingly relevant from 1969, which I'm sure most people thought would never be relevant again, but here we are. Thanks for that. We'll be be back on Wednesday to respond to some of the dumbest stuff we can find out there with Thomas and Lydia. And then we'll be back, of course, on Friday with Matt and Jenessa to break down the law in the news. So we will see you Friday, Jenessa.

0:53:15 Jenessa: See