Jamelle Bouie says in a new opinion piece:
Expelling or censuring members isn’t necessarily an attack on majority rule or popular government, and yet it feels more sinister, in a way, than an impenetrable partisan gerrymander or even a strict voter ID law. I think that’s because these moves against dissenting members constitute an attack on representation itself.
It has the cool name Amendment X, but it’s the one most likely to bring about our downfall. It should have been removed with the adoption of XIIIth, XIVth, and XVth amendments.
But do states have the power to do anything whatsoever?
I’ve yet to even see any claim that Zephyr even violated any House rules. So far as I can tell, they’re kicking her out for the offense of Existing While Trans.
No, she said that the legislature would have “blood on their hands” if they passed the latest anti-trans law, and the speaker is calling this a violation of decorum.
But in effect you’re right.
No, but look what they can do. If it’s not something covered by the constitution they have a free hand, and even if there are provisions in the constitution that should stop them it takes the courts to keep them under control and we may not be able to count on them to enforce the law of the land anymore.
A state representative in Montana asked a court on Monday to allow her to return to the House floor for the rest of the state’s legislative session, arguing that her First Amendment rights had been violated after an escalating standoff over her remarks on transgender issues.
“I’m determined to defend the right of the people to have their voices heard,” Ms. Zephyr, who is transgender, tweeted on Monday when announcing her lawsuit, adding that the rights of her 11,000 constituents had also been violated. Four of them were also named as plaintiffs in the lawsuit, which was filed by the American Civil Liberties Union of Montana and other lawyers.
Ms. Zephyr’s lawsuit calls for temporary restraining orders and injunctions that would prevent House leaders from enforcing the vote last week barring her from the floor. As of Monday afternoon, lawyers for the A.C.L.U. said they were waiting for a judge to review Ms. Zephyr’s application for emergency relief.
As was the case in Tennessee recently, the Republicans seem clueless with respect to the optics of the whole thing. Is smacking down a Black trans person really worth all the bad press and motivation fuel for Liberal activism? Stupid fascists.
How much do you want to bet that, if you went through the records, you’d find multiple Republicans in the chamber who have also used the words “blood on their hands” on the floor? It’s not a rare phrase, especially not in politics.
So, these are the justifications I’ve heard for Zephyr’s punishment. First, the when you bow your heads to pray, you’ll see the blood on your hands, or something to that effect.
Second, after that incident, some people in the gallery chanted in support while she supposedly held her microphone up above her head to try to amplify the voices of those who were disrupting the proceedings.
Those things “broke decorum.”
As for the many theories being thrown around, a couple of comments:
The republican form of government clause has very little application here, as it’s been construed up until now. The Supreme Court has treated every case (as far as I know) as a nonjusticiable political question. That means there is no remedy in court for an allegation of a violation of the guarantee clause.
The president could call up the Guard to enforce the clause, but that’s supposed to happen if there’s an insurrection. Some legislators arguing about decorum is not that.
I don’t think she’ll probably get anywhere with any of these arguments, but the First Amendment one seems the most plausible to me.
And just to be totally clear, I hope she finds a way to kick their asses. And I hope she stays safe.
So, can the Montana legislature remove absolutely every democrat from their legislature for “reasons?” Never mind if it is a smart move…is there anything that stops them?
This has always bothered me. It is literally a made-up rule the court adopted. There is no law, no nothing that says this has to be how things work. The court just decided, on their own, that’s how they will roll. There is nothing stopping them from ignoring it beyond precedent (and that has been tossed overboard lately). Indeed, they only ever invoke it when they feel like it. They basically granted themselves a dodge. A “Get Out of Jail” free card.
It may be so, but it may also be a recognition of the limitations of what can be accomplished by the courts. The Supreme Court has not said that the guarantee clause is unenforceable. Just that it is not enforceable in court.
They’ve said that it’s up to Congress to enforce it, and through Congress, with e.g. the Insurrection Act, the president.
Imagine that the Montana legislature does expel all the Democrats. And, say, Trump is president, so he just applauds it. And Congress is either Republican and therefore happy, or deadlocked because the House and the Senate are split. Now a lawsuit reaches the Supreme Court about the guarantee of a Republican form of state government. If the Supreme Court concluded that the clause had been violated, what happens? How does the Supreme Court order that violation to be remedied? And if they order it, who will enforce it?
It is, quite literally, a political question. If we lose our Republican form of government, the only way to get it back is to get it back politically, or by force (or both). If Montana is an outlier, then Congress, the president, and the rest of the nation will pull it back in. If Montana is not enough of an outlier, then nothing a court says is going to matter, because it will be unenforceable.
Can’t this be said of any Supreme Court decision? Andrew Jackson supposedly said, “John Marshall has made his decision, now let him enforce it.” That is probably apocryphal but illustrates the point.
The Supreme Court has no ability to enforce any ruling. They rely on other government agencies to do that.
And the court has decided “political” cases such as Baker v. Carr, a 1962 redistricting case (that is a fascinating case…it literally destroyed two supreme court justices). You can hear the story on this podcast. Well worth a listen IMHO.
So, basically, they use the “political question” dodge when it is convenient. They can and should weigh in on such questions.
Yeah, I think you missed the point of my post. Maybe I didn’t explain it very well, but I think this is a bit of a hijack, so I’ll leave it at that.
I do not think I missed anything. Particularly since you did not bother to say how or where I missed your point.
Neither is this a hijack. The OP asked, “Is this legal?” Well, who decides what is legal other than the courts? They are the arbiter of such questions and the Supreme Court is the final arbiter of those questions.
I provided an example of where the Supreme Court has weighed on a decidedly “political question” and I’ll offer another…they picked the president of the United States in 2000. Why didn’t they steer clear then because it was a “political question?” Hard to think of a case that gets more political than that.
Clearly the court has answered a “political question” when it suits them. It is a made up rule. One the court imposed on itself. And when talking about enforcement…who enforces this rule? It is like you have a rule against drinking coffee. But occasionally, you decide to have a coffee.
Sorry. I thought we were in the war on trans thread. I’ll write more when I get a chance.
ACLU-backed suit to reinstate her was rejected on separation of powers grounds. Her suit was based on the First Amendment.
I think that decision was stupid and wrong. There is a constitutional mechanism to deal with disputed election results/electors. It is specifically a political process. Bush v. Gore is a good example of why the Court should stay away from political questions. That decision was political, is clearly seen as political, and damaged the reputation and authority of the Court. Had the constitutional process played out, there would not have been a difference in the outcome, it would be seen as just as political, but the branch making the decision would have been a political branch. So the accountability comes at the next congressional elections, where people unhappy about the decision can vote for people they think would make a better choice.
I think you’ve already answered your own question; it’s just not a satisfying answer. There are no rules. “Is it legal” is not a question that has an answer outside the realm of made up rules. There’s no law saying it has to be this way or that way, and even if there was a law, so what? It’s the Supreme Court.
It seems to me that there have been a lot of people struggling for the last 7 years or so to come to terms with the state of American democracy, but I don’t think it’s because of a lack of understanding of the situation. I think the answers just suck.
If what you really want to know is, what is there in place to make sure we don’t have to round people up and put them in jail or fight them to make sure they don’t do this kind of stuff more and more: nothing besides what you already know about. How do we know the Montana legislature won’t do what you said, or that if they do the Supreme Court does something, or that if the Supreme Court doesn’t do something, Congress can? How do we know it won’t come down to either somebody backing down, or somebody being willing to use force? We do not. All the rules are made up.