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As Rep. Bill Pascrell said it, "Stated simply, the men and women who would act to tear the United States Government apart cannot serve as Members of the Congress," arguing that the 14th Amendment prohibits members of Congress from rebelling against the U.S., and "trying to overturn a democratic election and install a dictator seems like a pretty clear example of that."

What would happen then?

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  • It appears that a member-elect can only be denied a seat in contested elections. – butterfly Jan 2 at 3:08
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Assuming Pelosi is Speaker, how would it affect the January 6th count if she refused to seat the Reps who plan on objecting to the electoral votes?

There would be no effect, because Speaker Pelosi cannot refuse to seat a duly-elected candidate.

When Can Congress Refuse to Seat a Duly-Elected Candidate?

Never.

In 1969, the U.S. Supreme Court ruled that the Speaker of the House could not exclude a duly-elected candidate for the U.S. House of Representatives.

Once seated, the House could vote to expel the member by a two-thirds vote.


While Pascrell may wish to exclude some representatives, a mistake appears to have been made in the analysis of the authority to exclude those members.

In Pascrell's letter to Speaker Pelosi, Pascrell quotes a Congressional Research Service (CRS) report, Expulsion of Members of Congress: Legal Authority and Historical Practice, January 11, 2018,

Consequently, I call on you to exercise the power of your offices to evaluate steps you can take to address these constitutional violations this Congress and, if possible, refuse to seat in the 117th Congress any Members-elect seeking to make Donald Trump an unelected dictator.5

5The Supreme Court in Powell v. McCormack acknowledged Congress “may exclude a Member-elect with a simple majority.” See https://fas.org/sgp/crs/misc/R45078.pdf;. (The Court found restrictions on Congress’s exclusionary power, but had restrictions existed in 1861, the seating of treasonous members-elect in the 37th Congress would have spelled the end of the nation. 395 U.S. 486, 547-48 (1969). The ruling also does not assess Amendment 14, Section 3 (which was enshrined to exclude seditious Members-elect), as petitioner Powell was not excluded on those constitutional grounds.).

The CRS report does say,

Unlike the two-thirds majority requirement of the expulsion power, a body of Congress may exclude a Member-elect with a simple majority.6

6 Id. [Referring to Powell v. McCormack, 395 U.S. 486, 492-32 (1969).]

However, later, referring to Powell, the report notes limits to the authority to exclude.

While the Court recognized that the Constitution grants broad authority to each of the houses of Congress regarding expulsion and other discipline, it explained that Congress’s authority regarding exclusion was limited to the enumerated qualifications requirements.14

14Powell, 395 U.S. at 522 (“[T]he Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.”).

The enumerated qualifications are given in Article I, Section 2, Clause 2: Qualifications of Members of the House of Representatives

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Thus Pascrell plan to exclude some representatives has no chance at all.

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  • This in some sense is similar to the Congress' authority to reject electors, no? Objections can only be in regards to electoral votes that were not “regularly given” by an elector, or to electors who were not “lawfully certified” according to state laws. – NotPynchon Jan 1 at 0:01
  • @NotPynchon - There is, in the Disqualification Clause, a provision that would permit the vote of an "elector of President and Vice-President" to be rejected based on their having "engaged in insurrection or rebellion against" a city, a state, or the United States; but only if they had previously became bound to support the Constitution of the United States. – Rick Smith Jan 1 at 0:19
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    @T.J.Crowder - Electors do take an oath or affirmation before voting. "Previously" implies: An oath or affirmation followed by insurrection means not qualified (unless such disability is removed). No prior oath or affirmation, insurrection, rights restored means not disqualified to become an elector, which then permits an oath or affirmation as an elector. That's what the text implies. See, Fourteenth Amendment, Section 3: Disqualification Clause. – Rick Smith Jan 1 at 12:33
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    Nitpick: Pascrell's plan is not to make Pelosi unseat representatives directly, his plan is to make her investigate whether her office gives her any such power (including this seating thing which he doesn't really know whether it's enough or not). So he isn't outright trying to invent some power Pelosi doesn't have, it's merely a reminder she should do what she can - and probably his plan is really about making these representatives anxious - having grounds to attack them as traitors, even if it's not legal fact, will cost them votes. – toolforger Jan 1 at 13:24
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    @NotPynchon - Sedition requires the use of force. Using the courts to overturn an election based on the claim that it was not legal, does not qualify as sedition. Neither does attempting to exclude representatives, based on the claim that their support of the suit was seditious, qualify as sedition. As nearly as I can tell, there was and is no rational basis for either. – Rick Smith Jan 1 at 22:25

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