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Can Republicans Refuse to Seat Democrats on Jan. 3? [1]

['Blue Boomer', 'Chitown Kev', 'Chloris Creator']

Date: 2026-09-13  

Or will we have another day living in infamy alongside the Jan. 6 insurrection? Any legal eagles here able and willing to chime in? I know that Marc Elias and numerous Attorneys-General will stand ready to take this to the Supreme Court. Do we think that SCOTUS is corrupt enough to invite that many torches and pitchforks?

From Really American:

EVEN REPUBLICANS ARE SAYING IT OUT LOUD NOW

Something shifted in the last several days, which is that the warnings about this president started coming from people who are not Democrats. That is worth paying attention to, because it changes who the message reaches.

J. Michael Luttig, a federal judge appointed by George H.W. Bush and treated for decades as a hero of the conservative legal movement, published an essay arguing that House Republicans may refuse to seat Democratic members-elect when the new Congress convenes on January 3, even after a decisive Democratic win in November. He described it as a coming constitutional crisis, and the White House declined to say otherwise when asked.

So unalterably subjugated to Trump is today’s Republican House that even a decisive victory for Democrats and a resounding repudiation of Trump and the MAGA Republicans at the polls in November will not guarantee that a Democratic majority-elect will be seated in the 120th Congress on January 3.

All year long, Trump has been dragooning House Speaker Mike Johnson and the congressional Republicans into prejudging as fraudulent the upcoming November elections of the presumed Democratic majority, as he himself has already prejudged those elections. His dragooning appears to have worked. House Republicans are now poised to claim that the midterm elections were stolen from them when they meet on January 3 to decide which members-elect will be seated in the 120th Congress.

While it is small solace, Americans are not entirely at the mercy of this Republican Congress to suddenly decide to honor its oath to the Constitution and the American people. It will be the Supreme Court, not Trump, Johnson, or even the House of Representatives, that will have the final word as to who will be seated in the 120th Congress of the United States.

Luttig then cited SCOTUS precedents saying that Congress can’t do that.

Election Law Blog: The House is not a continuing body

Johnson won’t have any gavel to surrender at the beginning of the new Congress on January 3, 2027. There won’t be any Speaker at all, either Democrat or Republican, until there is a new Speakership election based on all the Members-elect who present to the Clerk of the House their credentials of election from their states.

Some have asked whether Johnson could appoint a corrupt Clerk of the House to refuse those credentials. The case would then immediately go to SCOTUS.

Election Law Blog: Fearmongering about stealing Congress on January 3, 2027

Where are the public proponents of this theory on the Republican side? The closest, and only, one I’ve seen supporting Republicans exercising this move, in a vague and hand-waving way, has been Scott Yenor, American Greatness, April 14, 2026, “No SAVE Act? Congress Still Holds the Trump Card,” with nothing more than the glib, “Congress could deny representation to states without voter identification laws or those that wink at foreign nationals voting in their elections. Or Congress could require new elections when voting rolls are not properly purged.”

IOW, Fear Not. Our legal eagles are on the case, and in any event I invite you to imagine the torches and pitchforks or at least eagle costumes that would greet such a move in Congress or SCOTUS.

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[1] Url: https://www.dailykos.com/stories/2026/9/13/800097782/community/can-republicans-refuse-to-seat-democrats-on-jan-3/

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