We do a disservice to Democrats by demanding Pelosi deny seats to 126 GOP Members

The call for Speaker Pelosi to refuse to seat the 126 Members who signed the Supreme Court amicus brief - triggered by a tweet from Rep. Bill Pascrell - sounds good, but it's a non-starter. Neither the Speaker nor the House have the Constitutional or statutory authority to take such an action.

First, a Member can be denied their seat ONLY if he or she fails to meet the Constitutional qualifications (age, citizenship, residency, etc.) or if the result of their election is contested or uncertified. Neither of those conditions apply to any of those Members and, therefore, they are entitled to be sworn in.

Second, the argument being used here and elsewhere that the 14th Amendment prohibits anyone who engaged in "rebellion or insurrection" from serving in Congress does not apply. That clause was intended to apply to former Confederates who participated in a war intended to overthrow the government and is inoperable here. Signing an amicus brief asking the Supreme Court to settle a legal dispute is not an act of war, violence, sedition, insurrection or rebellion. It is, in fact, how we expect people to address their objections - they had every right to petition the Court, notwithstanding the outrageousness of their position. The fact that their request was an outrageous one does not turn their use of the judicial process into a federal crime. No court would rule otherwise and no lawyer with even rudimentary knowledge of the Constitution or statute would argue that they should.

Note that several members of the Congressional Black Caucus sought to have the Florida Electoral College results thrown out in 2001. Other than the fact that they sought to do this in a joint session of Congress instead of in court, that was no different than this situation - their attempts to use a legal process to achieve their goal was not seditious and certainly didn't render them in violation of the Constitution or subject to being denied their Congressional seats.

Third, even if these 126 Members' actions could be deemed to be a criminal rebellion, insurrection or sedition within the meaning of the Constitution or statute, it is not within the power of the Speaker or the House to unilaterally make that determination.

Some people have cited Section 3 of the 14th Amendment as justification for their call to exclude these Members, yet seem to have skipped over Section 1 of that same amendment, which guarantees due process and equal protection and, thus prohibits the House from denying them their seats based on an extra-judicial allegation that they violated the Constitution.

In order for the House to invoke this clause of the Constitution against a Member, a court would first have to have convicted that Member of the specific crime on which the refusal to seat is based.

Moreover, it is somewhat ironic to see Democrats insist that Members who argued that voters should have their vote disregarded and their chosen candidate denied the office they selected him for should be punished by having the votes of THEIR voters disregarded and their chosen candidate denied the office they selected them for.

Unfortunately, social media (including DU) is being flooded with people who don't know the law but are demanding that the Speaker and the House do what they are not legally empowered to do. And, of course, many of those demands are couched in criticisms and accusations that speaker Pelosi and the Democrats are weak, cowards, ineffective, etc. if they do not do it. And since they will not do it because they cannot do it, we will continue to be inundated with unfair and baseless attacks on Democratic leadership.

Instead of focusing on trying to force an action that has no basis in law, I urge people to consider what type of action they can advocate that can actually be taken to punish these irresponsible Members and deter others considering similar action in the future from following their lead.

Rep. Pascrell has done us all a disservice with his call for Pelosi to deny seats to 126 GOP Members

It's a shame Congressman Pascrell didn't take the time to run his recommendation by House Counsel before he tweeted it to the world. They would have told him the idea is a non-starter - that neither the Speaker nor the House have the Constitutional or statutory authority to take such an action.

First, a Member can be denied their seat ONLY if he or she fails to meet the Constitutional qualifications (age, citizenship, residency, etc.) or if the result of their election is contested or uncertified. Neither of those conditions apply to any of those Members and, therefore, they are entitled to be sworn in.

Second, the argument being used here and elsewhere that the 14th Amendment prohibits anyone who engaged in "rebellion or insurrection" from serving in Congress does not apply. That clause was intended to apply to former Confederates who participated in a war intended to overthrow the government and is inoperable here. Signing an amicus brief asking the Supreme Court to settle a legal dispute is not an act of war, violence, sedition, insurrection or rebellion. It is, in fact, how we expect people to address their objections - they had every right to petition the Court, notwithstanding the outrageousness of their position. The fact that their request was an outrageous one does not turn their use of the judicial process into a federal crime. No court would rule otherwise and no lawyer with even rudimentary knowledge of the Constitution or statute would argue that they should.

Note that several members of the Congressional Black Caucus sought to have the Florida Electoral College results thrown out in 2001. Other than the fact that they sought to do this in a joint session of Congress instead of in court, that was no different than this situation - their attempts to use a legal process to achieve their goal was not seditious and certainly didn't render them in violation of the Constitution or subject to being denied their Congressional seats.

Third, even if these 126 Members' actions could be deemed to be a criminal rebellion, insurrection or sedition within the meaning of the Constitution or statute, it is not within the power of the Speaker or the House to unilaterally make that determination.

Some people have cited Section 3 of the 14th Amendment as justification for their call to exclude these Members, yet seem to have skipped over Section 1 of that same amendment, which guarantees due process and equal protection and, thus prohibits the House from denying them their seats based on an extra-judicial allegation that they violated the Constitution.

In order for the House to invoke this clause of the Constitution against a Member, a court would first have to have convicted that Member of the specific crime on which the refusal to seat is based.

Moreover, it is somewhat ironic to see Democrats insist that Members who argued that voters should have their vote disregarded and their chosen candidate denied the office they selected him for should be punished by having the votes of THEIR voters disregarded and their chosen candidate denied the office they selected them for.

Unfortunately, Rep. Pascrell seems not to have obtained a legal opinion before making his public demand - or if he did, he disregarded it and put it out there anyway. Now, unfortunately, social media is being flooded wpeople who don't know the law but relied on Rep. Pascrell's claims, demanding that the Speaker and the House do what they are not legally empowered to do. And, of course, many of those demands are couched in criticisms and accusations that speaker Pelosi and the Democrats are weak, cowards, ineffective, etc. if they do not do it. And because they can't and won't do it, we will continue to be inundated with unfair and baseless attacks on Democratic leadership, thanks to a very public but very irresponsible pronouncement by a Member who should have known better.

Hunter Biden issued a statement the other day about the investigation into his taxes

Tweet of my night ...

I don't understand why some Democrats seem incapable of taking even a few moments to savor victories

In the days after the election, instead of enjoying the fact that Biden was clearly ahead and would win, folks carried on incessantly about the fact that the networks had not declared him the winner. When they declared him the winner, they barely took a moment to celebrate before wringing their hands that the states would not fairly count the votes. When the votes got counted, they insisted that the votes wouldn't get certified. When the votes got certified, they worried that the courts would throw out the count. When a dozen courts refused to get in the way of the results, they insisted that the NEXT cases would go badly. When two dozen then three dozen then four dozen cases went our way, they said, "Sure. We won THOSE. But the Supreme Court's going to side with Trump and it will all go to hell."

And then today, after the Supreme Court, for the second time this week, shut Trump down, and pretty much closed off every legal avenue for blocking Biden's way to the White House, folks are now all worked up because it's not likely that Congress will indulge their need for immediate revenge by refusing to seat the Members who signed on to the unsuccessful amicus brief.

Come on, people! We WON! Everything doesn't have to be a dramatic fight all the time. Can we just take some time to enjoy the win and think positively about how we move forward instead of looking for issues to complain about and get worked up over?

I just can't with all the sore winning. We'll have plenty of time to fret and get mad and frustrated in the coming months and years. But tonight, I'm reveling in the wins, especially this huge one we got tonight.

I just realized who it was who suggested a new "Union of States"

Oh, the irony ...

Neither the Speaker nor the House can refuse to seat the 126 Republicans who signed the amicus brief

There is no provision in the law for them to take such an action and, in fact, it would be unconstitutional.

Among other things, those Members were duly elected and meet all of the qualifications for membership in the House and, thus, must be seated.

In addition, although some people are accusing them of sedition, rebellion, insurrection, etc., those crimes have very specific elements and their act of signing the amicus briefs, while reprehensible, do not rise to the levels of those crimes.

Moreover, even if their actions DID constitute crimes, they would first have to be tried and convicted before the House could deny them their seats, pursuant to the Fourteenth Amendment requirement of due process.

Please note: The Supreme Court decision tonight was actually a UNANIMOUS smackdown

Thomas and Alito dissented ONLY to the decision that the Court did not have the authority to hear the case. But they also said they "but would not grant other relief."

In other words, Thomas and Alito suggested they would have taken the case and then ruled against the plaintiffs on the merits.

This was a major, unanimous smackdown of Trump and his cabal.

If you read nothing else today

Please read the Preliminary Statement of the Pennsylvania Attorney General's response to Texas' attempt to get the Supreme Court to overturn the election:

Republicans really be stupid