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January 17, 2021, 10:48:47 AM
News: Chaos in the capitol: https://talkelections.org/FORUM/index.php?topic=422360

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  Constitution and Law (Moderator: True Federalist (진정한 연방 주의자))
  Does expulsion from the House/Senate disqualify you from running again?
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Author Topic: Does expulsion from the House/Senate disqualify you from running again?  (Read 572 times)
Senator tack50 (Lab-Lincoln)
tack50
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« on: January 14, 2021, 05:00:20 AM »

Basically what it says in the title. Since lately I've seen some expulsions be discussed for some of the heaviest MAGA representatives, my question would be whether the expulsion is for life, or if on the contrary they could get reelected or possibly even run in the special election to fill their seat.

Let's say that a random trumpist representing an R+yes district gets expelled. Could he then run in the special election to fill his seat? Or on the general election?
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #1 on: January 14, 2021, 07:55:04 AM »

If I remember correctly, there have been examples of Congresscritters being expelled and then reelected. However, none of those involved Section 3 of Amendment XIV, which states:

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

So expulsion because of insurrection would be a bar not only to holding Federal office, but State office as well.
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Del Tachi
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« Reply #2 on: January 14, 2021, 12:37:36 PM »

Performing your Constitutional duty as a Member of Congress to certify the results of the electoral college cannot be an act of insurrection.  If a Democratic Congress passes something this egregious (which they won't), there's no way SCOTUS allows it.
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brucejoel99
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« Reply #3 on: January 14, 2021, 01:20:35 PM »

Performing your Constitutional duty as a Member of Congress to certify the results of the electoral college cannot be an act of insurrection.  If a Democratic Congress passes something this egregious (which they won't), there's no way SCOTUS allows it.

No, the congressional authority to expel & the invocation of Section 3 of the 14th Amendment would clearly constitute a nonjusticiable political question. After all, the one time that it was invoked in such a manner as Democratic representatives like Cori Bush are proposing today was on the basis of a house of Congress' power to determine the qualifications of its members, something which the Courts have since determined in Powell v. McCormack that a chamber can give effect to through its power to expel. If the requisite 2/3rds majority of Congress needed to expel a member existed & summarily voted to do so on the basis that such a member's vote against certification of the Electoral College results constituted an "engage[ment] in insurrection," then that'd really be the plain-&-simple end of it. The courts wouldn't get to butt in & say "well, we agree that Congress has this power since the Constitution specifically says that they have this power, but we don't like that they exercised it in this instance," especially when the Constitution doesn't even define what technically constitutes an "insurrection" for the purposes of its invocation. Given all of this, I just don't see how this wouldn't play out similarly to (if not as a repeat of) Nixon v. United States, with the courts determining that they have no jurisdiction to review the expulsion of a member of Congress & the permanent disqualification thereof on the basis of Section 3 of the 14th Amendment since the Constitution reserves those functions to a coordinate political branch (in this case, Congress).
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Del Tachi
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« Reply #4 on: January 14, 2021, 02:01:01 PM »

Performing your Constitutional duty as a Member of Congress to certify the results of the electoral college cannot be an act of insurrection.  If a Democratic Congress passes something this egregious (which they won't), there's no way SCOTUS allows it.

No, the congressional authority to expel & the invocation of Section 3 of the 14th Amendment would clearly constitute a nonjusticiable political question. After all, the one time that it was invoked in such a manner as Democratic representatives like Cori Bush are proposing today was on the basis of a house of Congress' power to determine the qualifications of its members, something which the Courts have since determined in Powell v. McCormack that a chamber can give effect to through its power to expel. If the requisite 2/3rds majority of Congress needed to expel a member existed & summarily voted to do so on the basis that such a member's vote against certification of the Electoral College results constituted an "engage[ment] in insurrection," then that'd really be the plain-&-simple end of it. The courts wouldn't get to butt in & say "well, we agree that Congress has this power since the Constitution specifically says that they have this power, but we don't like that they exercised it in this instance," especially when the Constitution doesn't even define what technically constitutes an "insurrection" for the purposes of its invocation. Given all of this, I just don't see how this wouldn't play out similarly to (if not as a repeat of) Nixon v. United States, with the courts determining that they have no jurisdiction to review the expulsion of a member of Congress & the permanent disqualification thereof on the basis of Section 3 of the 14th Amendment since the Constitution reserves those functions to a coordinate political branch (in this case, Congress).

Congress has never expelled a member and then excluded that person from future service under the insurrection clause of the 14th Amendment.  The Supreme Court has not ruled on the constitutionality of an exclusion under the amendment, or its interaction with Congress' separate Article I, Section 5 power to expel a member with a two-thirds vote (which is what your post is about.)  Someone who is excluded under this amendment would have a case in court, especially in the absence of a statute declaring voting against the certification of electors as an illegal act of insurrection (which would then be problematic if enforced retroactively.)
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True Federalist (진정한 연방 주의자)
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« Reply #5 on: January 14, 2021, 02:53:03 PM »

Performing your Constitutional duty as a Member of Congress to certify the results of the electoral college cannot be an act of insurrection.  If a Democratic Congress passes something this egregious (which they won't), there's no way SCOTUS allows it.

I'll grant that Congress is unlikely to expel anyone for simply being an idiot, and even less likely to invoke Article XIV Section 3 while doing it.

That said, if anyone went beyond simple idiocy to call for other idiots to storm Congress, I can see it happening.
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Del Tachi
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« Reply #6 on: January 14, 2021, 03:32:18 PM »

This is also just a pretty dumb and stupid precedent to set.  Future Republican Congresses could expel Democrats who voted against military force authorizations as “aiding and abetting enemies.”

One has to also consider the spirit of the Speech and Debate Clause, which shields members of Congress from civil or criminal penalties stemming from their legislative activity.  It seems fascistic that votes taken or speech given in Congress (perhaps the most political category of speech imaginable) could be the basis of “insurrection” against the U.S. government. 
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True Federalist (진정한 연방 주의자)
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« Reply #7 on: January 14, 2021, 04:00:23 PM »

This is also just a pretty dumb and stupid precedent to set.  Future Republican Congresses could expel Democrats who voted against military force authorizations as “aiding and abetting enemies.”

One has to also consider the spirit of the Speech and Debate Clause, which shields members of Congress from civil or criminal penalties stemming from their legislative activity.  It seems fascistic that votes taken or speech given in Congress (perhaps the most political category of speech imaginable) could be the basis of “insurrection” against the U.S. government. 

It's fantastic that someone would pretend they won reelection when they clearly didn't.  As I said, I don't see anyone being expelled just because of how they voted on whether to certify. Also the Speech or Debate Clause only covers what is said on the floor or in committee. It certainly doesn't cover social media posts or campaign rallies.
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Vosem
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« Reply #8 on: January 14, 2021, 04:37:46 PM »

Basically what it says in the title. Since lately I've seen some expulsions be discussed for some of the heaviest MAGA representatives, my question would be whether the expulsion is for life, or if on the contrary they could get reelected or possibly even run in the special election to fill their seat.

Let's say that a random trumpist representing an R+yes district gets expelled. Could he then run in the special election to fill his seat? Or on the general election?

Expulsion is not impeachment, and yes, you can run again after being expelled. Moreover, the decision in Powell v. McCormack has normally been interpreted to mean that a Congressman whose district returns him after expulsion may not be excluded from the normal business of Congress (ie, you have to give them their fair share of office space and committee spots and so forth), and Congress does not have the authority to create new qualifications for service beyond those listed in the Constitution (though it is the final authority on those -- for instance, if there were a dispute over whether an elected Representative had reached 25 years of age, or was really a US citizen, or something, then Congress would have the final say on whether they were qualified or not. Same with disputed elections, though courts could certainly overturn Congress blatantly stealing an election using the Due Process Clause).
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Del Tachi
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« Reply #9 on: January 15, 2021, 10:42:43 AM »

This is also just a pretty dumb and stupid precedent to set.  Future Republican Congresses could expel Democrats who voted against military force authorizations as “aiding and abetting enemies.”

One has to also consider the spirit of the Speech and Debate Clause, which shields members of Congress from civil or criminal penalties stemming from their legislative activity.  It seems fascistic that votes taken or speech given in Congress (perhaps the most political category of speech imaginable) could be the basis of “insurrection” against the U.S. government. 

It's fantastic that someone would pretend they won reelection when they clearly didn't.  As I said, I don't see anyone being expelled just because of how they voted on whether to certify. Also the Speech or Debate Clause only covers what is said on the floor or in committee. It certainly doesn't cover social media posts or campaign rallies.

That is exactly what Cori Bush's resolution (with 54 Democratic co-sponsors as of this morning) call for.

Let's just face the facts, Democrats are abandoning the basic principle of parliamentary privilege that has guided democratic government for 400+ years. 
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brucejoel99
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« Reply #10 on: January 15, 2021, 12:16:32 PM »

This is also just a pretty dumb and stupid precedent to set.  Future Republican Congresses could expel Democrats who voted against military force authorizations as “aiding and abetting enemies.”

One has to also consider the spirit of the Speech and Debate Clause, which shields members of Congress from civil or criminal penalties stemming from their legislative activity.  It seems fascistic that votes taken or speech given in Congress (perhaps the most political category of speech imaginable) could be the basis of “insurrection” against the U.S. government. 

It's fantastic that someone would pretend they won reelection when they clearly didn't.  As I said, I don't see anyone being expelled just because of how they voted on whether to certify. Also the Speech or Debate Clause only covers what is said on the floor or in committee. It certainly doesn't cover social media posts or campaign rallies.

That is exactly what Cori Bush's resolution (with 54 Democratic co-sponsors as of this morning) call for.

Let's just face the facts, Democrats are abandoning the basic principle of parliamentary privilege that has guided democratic government for 400+ years. 

Y'know, if you're gonna try & claim that 24.8% of the Democratic caucus supporting something amounts to Democrats in general "abandoning the basic principle of parliamentary privilege that has guided democratic government for 400+ years," then you're just opening yourself up to somebody clapping back by pointing out that 65.4% of the Republican conference is in favor of literally abandoning the 400+ year-old basic principle that is democratic government, given their involvement in the Texas lawsuit & then their votes to uphold the baseless EC objections, but that's obviously none of my business Wink
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Del Tachi
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« Reply #11 on: January 16, 2021, 05:49:09 PM »

This is also just a pretty dumb and stupid precedent to set.  Future Republican Congresses could expel Democrats who voted against military force authorizations as “aiding and abetting enemies.”

One has to also consider the spirit of the Speech and Debate Clause, which shields members of Congress from civil or criminal penalties stemming from their legislative activity.  It seems fascistic that votes taken or speech given in Congress (perhaps the most political category of speech imaginable) could be the basis of “insurrection” against the U.S. government. 

It's fantastic that someone would pretend they won reelection when they clearly didn't.  As I said, I don't see anyone being expelled just because of how they voted on whether to certify. Also the Speech or Debate Clause only covers what is said on the floor or in committee. It certainly doesn't cover social media posts or campaign rallies.

That is exactly what Cori Bush's resolution (with 54 Democratic co-sponsors as of this morning) call for.

Let's just face the facts, Democrats are abandoning the basic principle of parliamentary privilege that has guided democratic government for 400+ years. 

Y'know, if you're gonna try & claim that 24.8% of the Democratic caucus supporting something amounts to Democrats in general "abandoning the basic principle of parliamentary privilege that has guided democratic government for 400+ years," then you're just opening yourself up to somebody clapping back by pointing out that 65.4% of the Republican conference is in favor of literally abandoning the 400+ year-old basic principle that is democratic government, given their involvement in the Texas lawsuit & then their votes to uphold the baseless EC objections, but that's obviously none of my business Wink

Norms are norms, no matter who violates them.  Find where I've voiced any support for Trump's election challenges and GOP efforts to satisfy them Wink
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Make America Neoliberal Again
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« Reply #12 on: January 16, 2021, 11:31:25 PM »

Simply put, Republicans aren't going to vote to expel the majority of their caucus, so the resolution is dead in the water and will never have to be tested in court.
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PR
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« Reply #13 on: Today at 01:32:20 AM »

This is also just a pretty dumb and stupid precedent to set.  Future Republican Congresses could expel Democrats who voted against military force authorizations as “aiding and abetting enemies.”

One has to also consider the spirit of the Speech and Debate Clause, which shields members of Congress from civil or criminal penalties stemming from their legislative activity.  It seems fascistic that votes taken or speech given in Congress (perhaps the most political category of speech imaginable) could be the basis of “insurrection” against the U.S. government.  

It's fantastic that someone would pretend they won reelection when they clearly didn't.  As I said, I don't see anyone being expelled just because of how they voted on whether to certify. Also the Speech or Debate Clause only covers what is said on the floor or in committee. It certainly doesn't cover social media posts or campaign rallies.

That is exactly what Cori Bush's resolution (with 54 Democratic co-sponsors as of this morning) call for.

Let's just face the facts, Democrats are abandoning the basic principle of parliamentary privilege that has guided democratic government for 400+ years.  

No, Democrats are asserting the independence of the legislative branch against the executive branch. Meanwhile, many (though certainly not all) Republican members of Congress have forfeited their duty as public servants or worse, conspired with the defeated President and his supporters in this attempted coup. Pretty significant difference.
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PR
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« Reply #14 on: Today at 01:36:44 AM »

Simply put, Republicans aren't going to vote to expel the majority of their caucus, so the resolution is dead in the water and will never have to be tested in court.


I’d be satisfied with Cruz, Hawley, and a handful of the crazies in the House being expelled.

Ideally they would be expelled at the ballot box, but these are not ideal times.
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