We have a quite the serious Constitutional quagmire here. 20th Amendment states that:
and the terms of Senators and Representatives [shall end] at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin [...]
Riddle me this....
How are purported House members-elect lawfully participating in House business (election of a Speaker), if they are not actually members of the House until they are sworn in, which according to House rules, cannot happen until the election of a Speaker?
Sounds like the Constitution is long overdue for an amendment to clarify this glaring oversight by the Framers.
Furthermore, if our House has been functioning in such a disfunctional, arguably unconstitutional manner, seemingly since the beginning, have we ever truly had a legitimate Congress?
Time for a new Convention of the States to settle some of these big issues.
Let me remind you that number is EXACTLY 0. House members are up for election every 2 years. Even if someone took a seat after someone died their term would end Jan 3 just like everyone else's (in the House). The Senators are elected for 6 years so only roughly 1/3 are up for election every 2 years.
Correct, though since returning members had previously taken the oath required by the Constitution, arguably they already tick off that requirement to be "seated."
A simple way to remedy this issue would be for the purported new House to meet and the first act of the session be for the Chief Justice to administer the Oath to all, thus seating the new body. And then the members should proceed to vote for Speaker.
Nice idea. I'd be fine with the outgoing speaker (even if they will also be the incoming speaker). It should absolutely be done the day before, or if they make a law like noon on inauguration day they would have the old and new members there so they could swear them in at 1130 or something. Just make them car pool or take the Metro...
The CJOTUS shouldn't be involved in swearing in the Legislative branch - although they are responsible for swearing in members of the Executive branch. Seems messy and against the separation of powers. Of course they could also do a round-robin and have the SCOTUS swear in the Legislative, the Legislative swear in the Executive, and the Executive swear in the Judicial. I wonder if they still teach "3 co-equal branches" anymore or if everyone is done pretending.
Slowly re-read what you just wrote 😉
Constitution already sets up situations for which the Chief Justice presides over Congress, such as impeachment, and as you acknowledged, they issue the oath the POTUS-elect. Given the similar nature of the procedure, having an unelected, theoretically nonpartisan official preside, who already is tasked with issuing oaths in other cases (for POTUS and new Justices) makes sense.