| It has been more than a month since the voters of Arizona’s Seventh Congressional District elected Adelita Grijalva to the House of Representatives in a special election. Nobody contests that Grijalva won nearly 70 percent of the vote. Yet House Speaker Mike Johnson still has not administered the oath of office to her. Why not? |
| Although Johnson and his allies have given a variety of explanations, he has lately settled on one: he is waiting for the end of the government shutdown, which he blames on Senate Democrats. That is not plausible, however, because nothing precludes Johnson from administering the oath while the government is shut down. Accordingly, many observers have suggested that Johnson’s true motive is to prevent Grijalva from providing the decisive margin for a discharge petition that would result in a House vote to release the Jeffrey Epstein files. |
| Indeed, in a federal lawsuit she filed last week, Grijalva herself alleges that Johnson is delaying administering the oath to prevent the Epstein files’ release. As I explain below, Grijalva has a strong case for the relief she seeks: a declaratory judgment that any other person authorized to administer oaths may do so and that once that has happened, she should be deemed a House member. |
| The Constitution and the Complaint |
| Article VI of the Constitution provides that “Representatives . . . shall be bound by oath or affirmation, to support th[e] Constitution.” In light of that provision, it is generally accepted that a person elected to the House cannot take their seat until they have taken the oath. |
| The Constitution does not specify the terms of the oath, but a federal statute does. The Constitution also does not specify who administers the oath. Another federal statute provides that the Speaker of the House administers the oath to new members at the beginning of each session. That statute is silent about who administers the oath following special elections, but under the House precedents (as set forth at page 182), the Speaker or Speaker pro tem administers those oaths as well. |
| However, no federal statute or House precedent can prevail in a conflict with the Constitution. And the Constitution gives no power to the Speaker of the House or any other official to exclude a duly elected House member who has the requisite qualifications for office. We know because the House tried to do just that in 1967, when it refused to accept Congressman Adam Clayton Powell, Jr.’s re-election. Powell sued, and the Supreme Court sided with him in the 1969 case of Powell v. McCormack. |
| The Constitution, the Powell Court acknowledged, makes each chamber of Congress the judge of its members’ qualifications, but that does not empower the House to add qualifications to the constitutional minima: representatives must be at least 25 years old, must have been citizens for at least seven years, and must reside in the states they represent. That’s it. Because Powell satisfied those criteria, the House decision to exclude him (based on alleged criminal actions) could not be deemed an exercise of the power to judge his qualifications; it was an impermissible effort to add more qualifications than those set out in the Constitution. |
| Grijalva’s complaint relies extensively on Powell. Speaker Johnson’s delay in administering the oath, she argues, is an impermissible effort to exclude a qualified House member. That not only harms her and the residents of her district, she contends, but also the state of Arizona, which is also a plaintiff and argues that it is being deprived of one of the nine House seats to which the state is entitled. |
| Notably, the complaint follows Powell in two other respects as well. First, in Powell, the Supreme Court dismissed the suit insofar as it sought relief against individual members of Congress because they enjoy immunity under the Speech and Debate Clause of Article I, Section 6, but allowed the suit to proceed against various other individuals, including the Clerk and Sergeant at Arms of the House. Grijalva’s complaint names as defendants the House itself, the Clerk, and the Sergeant at Arms, but not Johnson or any other House member. |
| Second, in Powell, the Court thought it unnecessary to decide whether an injunction would be an appropriate form of relief because, it said, a declaratory judgment was available. Picking up on that concern, Grijalva’s complaint seeks declaratory but not injunctive relief. |
| What’s at Stake |
| Assuming the Supreme Court permits the lower federal courts to follow existing precedent—which is hardly guaranteed these days—Grijalva should win her suit. She could then ask a sympathetic federal judge to administer her oath of office, and the declaratory judgment would require the House to recognize her as a member. |
| Will that matter? Not necessarily. For one thing, the litigation itself could drag on longer than the government shutdown. If Speaker Johnson keeps his word and administers the oath to Grijalva before the courts have had a chance to resolve her case, the litigation will not have a practical impact. |
| Indeed, it is not clear that the litigation will have a practical impact even if Grijalva wins a quick victory in court. At that point, she would be able to take her seat in Congress, but because the House is currently not conducting any business, neither she nor any other House member would have an opportunity to vote on any matter—including the Epstein files discharge petition—until Johnson gavels the House back into session. |
| That fact makes Johnson’s refusal to administer Grijalva’s oath puzzling. Quite apart from any litigation, keeping the House shut down prevents Grijalva from voting for the Epstein files discharge petition or anything else. Once the House reopens and Johnson administers the oath, she will be able to vote on all matters. Thus, it is not at all clear that Johnson gains anything from refusing Grijalva the oath now, so long as he is true to his word and administers it once the House reopens. |
| So, what is Johnson up to? |
| Perhaps he does not intend to administer Grijalva’s oath even once the government shutdown ends. If so, that would amount to a serious escalation of his party’s assault on our democracy. Already, red states like Texas and Missouri have taken the extraordinary step of redrawing their electoral maps mid-decade to create even more extreme political gerrymanders in a naked effort to prevent Democrats from retaking the House in next year’s midterm elections. But at least there will be elections in those states. Simply refusing to seat elected Democrats without even the pretext that they are not qualified for office would be a de facto admission by Johnson that he and his party do not intend to be bound by the will of the voters. |
| However, even if Johnson intends to keep his word, his refusal to administer the oath during the government shutdown is disturbing. As Speaker, Johnson subordinates all interests—including those of his Louisiana constituents and the institutional interests of Congress—to the will of President Donald Trump. Although delaying Grijalva’s ability to take her seat would have no practical consequence, it is a show of arbitrary force that likely appeals to Trump because it reflects the same contempt for the Constitution and the rule of law that the Trump administration routinely displays. |
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