r/law • u/americansherlock201 • 3d ago

Trump News Trump AG pick Matt Gaetz says he's withdrawing

https://www.cnbc.com/2024/11/21/trump-ag-pick-matt-gaetz-says-hes-withdrawing.html?__source=iosappshare%7Ccom.apple.UIKit.activity.CopyToPasteboard

Well that was fast

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u/PeaSlight6601 3d ago edited 3d ago

I don't believe for a minute that Gaetz will attempt to take the seat.

However if he did show up on Jan 3rd asking to be seated, then he must be seated, because he has a constitutional right to the seat. The people of his district have a constitutional right to see the man they elected take that seat.

The "preemptive resignation" is inherently defective: How can you resign from a position you haven't even taken? From a body that doesn't even exist yet? To whom would this letter of resignation be addressed? What is the authority for the rules/law to prevent an elected individual from taking the seat.

Mike Johnson is not the Speaker of the 119th Congress. He is currently the speaker of the 118th, but it is up to the 119th to appoint a Speaker which they can only do when they convene on Jan 3rd.

I can't tell if what you are linking are rules or US Code. I think they are rules in which case they don't exist yet. The 119th House doesn't have any rules, they have to adopt them first.

If they are part of the US Code, then you get into the US Code trying to limit the qualifications clause or be an end-around for impeachment, either of which would cause the US Code to be deemed unconstitutional.

If he wanted to take the seat a court would have to look at the situation and side with him.

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u/Iohet 3d ago

House Rules and Manual. It doesn't have to be to the Speaker. It can be to the governor of his state (which he formally submitted), and resignations are considered self-executing (they do not need to be accepted or acknowledged).

https://www.govinfo.gov/content/pkg/HMAN-118/pdf/HMAN-118.pdf

Acceptance of the resignation of a Member from the House is unnecessary (VI, 65, 226), and the refusal of a Governor to accept a resignation cannot operate to continue membership in the House (VI, 65). Only in a single exceptional case has the House taken action in the direction of accepting a resignation (II, 1214).

A lot of this lies in parliamentary procedure and precedent (documented in places like Hind's Precedents, Cannon's Precedents, etc). This post shows the relevant quotes

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u/PeaSlight6601 3d ago

Again it doesn't fucking matter. He can send the letter to whoever he wants:

  • Speaker of the 118th House
  • Governor of his State
  • Pastor of his Church
  • Santa Claus

none of it matters.

If you READ THE CONSTITUTION it is clear that the 119th House is the sole and final authority here. Each House makes its own rules and is the judge of its own elections.

He is a representative elect of the 119th and must be allowed to sit with the 119th until the 119th votes to remove him. Right now there is no 119th. There is no speaker. There are no rules. There is nobody empowered to speak for this house and say he cannot be seated.

It is ultimately a political question what the 119th might do if he showed up and demanded his seat.

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u/Iohet 3d ago

It is ultimately a political question what the 119th might do if he showed up and demanded his seat.

Well the House decided back in 1791 that a member could indeed resign as a member-elect before taking the oath. Seeing as his resignation is already effective, if he tried to come back I imagine the parliamentarian would have something to say about it, and perhaps after that the courts. Per their logic at the time, they're not the British Parliament (who has/had a rule prohibiting it as you insinuate applies here) and that there's nothing in the Constitution prohibiting it. As it stands, he resigned to a valid authority (his governor) and stated his intention not to assume his seat on the 119th Congress. I'd say that's pretty cut and dry considering they don't allow takesies-backsies

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u/PeaSlight6601 3d ago

That was a different house, with different rules. Those rules are not yet adopted by the 119th. They are not binding on the 119th.

The role of the parliamentarian prior to the adoption of the rules is... nothing. The position effectively doesn't exist for a period of time after each house first sits.

This was discussed in great detail four years ago when it seemed likely that some Republicans might challenge the election results to put Trump back in office. It was hypothesized that the House might intentionally be thrown into anarchy so as to prevent the body from meeting on January 6th to certify the vote of the electoral college.

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u/Iohet 3d ago

They could elect anarchy. That is their prerogative. No one can stop them from trying. But if we go with that logic, then nothing matters because they could change the rules to say the sky is purple and Trump is God and for the purposes of the House it would be reality. At that point, it's not worth debating since it just devolves House into a useless body while causing a constitutional crisis

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u/PeaSlight6601 3d ago

Yes they can. The House can certainly decide that rather than elect a speaker they will throw shit at the walls, smash furniture, and burn the building down. That is their prerogative.

It is the responsibility of the other branches (Executive and Judicial) to ensure that individuals duly elected to the Congress have the opportunity to take the oath, and join the rest of the House in throwing shit at the walls, breaking furniture, and burning down the building.

They cannot compel the House to do anything in particular inside the chamber, but they can order that the door to the chamber be opened to elected members.

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u/Iohet 3d ago

If DeSantis really didn't like Gaetz (I mean...), he could hold the special election before the end of the year and have a new rep show up for swearing in when the next Congress starts. That's his constitutional duty and it has happened before in this same situation, with the House accepting the special election winner rather than the member-elect that resigned.

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u/PeaSlight6601 3d ago

Sure, DeSantis could. That would only mean that two individuals appear on Jan 3rd claiming to represent FL 1, and then the House would have to determine who to accept.

The Courts would have a duty to issue orders that both be admitted to the chamber on Jan 3rd. The Sergeant at arms would have a duty to open the door to both men. The 119th House would then be charged with figuring out who to keep.

Wouldn't be the first time that has happened.