Some Republicans are considering a procedural challenge that could seek to prevent members of the Democratic Socialists of America from entering the House next year, even if they win Tuesday's elections. The proposal centers on questioning whether an incoming lawmaker can sincerely pledge to uphold the Constitution, but it faces significant legal and procedural obstacles.
Before becoming full House members, representatives-elect must take a constitutional oath, generally administered to all 435 members together by the speaker when a new Congress begins. An argument circulating among conservatives holds that one member-elect can object to another taking that oath by presenting evidence that the person would not honor it. The proposed process would involve debate and a House vote.
Supporters of that approach could point to the DSA platform's call to replace the current Constitution with a newly drafted document. Several DSA members and candidates who identify as democratic socialists have won primaries around the country. Rep. Keith Self, R-Texas, indicated to Fox News Digital that he might pursue a challenge. He argued that working to replace the Constitution conflicts with pledging to defend it and that the House should assess whether incoming members take the oath in good faith.
An analysis from the Center for Renewing America outlines how such an objection might proceed. The speaker could ask the challenged member-elect to stand aside while lawmakers examine documentary evidence and debate the person's commitment to the constitutional system. Under that theory, passage of a resolution establishing a commitment to destroying that system could prevent the member-elect from being sworn in.
The speaker could also reject a challenge. That option would be available to House Minority Leader Hakeem Jeffries, D-N.Y., if he becomes speaker, or to Speaker Mike Johnson, R-La., if Republicans retain their majority and he remains in the role. Speaking in Iowa earlier this month, Johnson dismissed suggestions that he would refuse to seat elected Democrats as a "nonsense narrative" and said, "We are going to follow the law."
Any attempt to exclude an elected candidate would also confront the Supreme Court's 1969 decision in Powell v. McCormack. The court ruled that the House cannot deny a seat to someone who meets the Constitution's age, residency and citizenship requirements. The case followed the House's refusal to seat New York Democrat Adam Clayton Powell Jr. after his 1966 reelection amid financial scandals. The Supreme Court ultimately overturned that decision.
Rep. Tim Burchett, R-Tenn., nevertheless told the New York Post earlier this month that he planned to challenge Darializa Avila Chevalier's eligibility to take the oath. Chevalier defeated a senior House Democrat in a primary and is considered almost certain to win her heavily Democratic district next week. Burchett cited a deleted 2019 X post in which she described wiping her hands on an American flag because she lacked a napkin. Such challenges would raise questions about overriding voters' choices and would almost certainly face renewed litigation.
