I’ve written a number of times about the central role of state sovereignty in resisting Trump’s growing tyranny and the critical fact that states control the administration of elections. With that in mind, I want to flag what I think is a key part of that equation. It’s not meant to be alarmist. It’s simply a matter of preparation.
As we’ve discussed, states control the administration of elections, subject to Congress setting standards for the administration of elections. This critical fact isn’t just a matter of law. It’s about the machinery of government. The states are there and the federal government isn’t. Trump can dash off a million executive orders but that doesn’t make them real or meaningful. More dangerous, he might try to use Immigration and Customs Enforcement agents or federal troops to create a climate of intimidation at the ballot box. That threat is real. But because of the structure of our elections, the key danger point likely comes later. Let’s assume the 2026 election or more likely the 2028 election goes more or less unmolested. Now in January 2027 the new representatives and senators show up for the new Congress. Are they seated? Or do congressional Republicans somehow refuse to seat them, arguing that their elections were somehow illegitimate, that they didn’t follow one of Trump’s legally meaningless executive orders?
The mechanics are actually complex on a few levels. Let’s assume for the sake of example that Democrats win both chambers in 2026. I’m not predicting this. It’s just the scenario that is best for illustration. When new members of the House arrive in DC in January 2027 everyone is new. In other words, there’s no Republican majority who can say the newly elected Democrats can’t be seated. I believe the presentation of certificates of election and swearing in is in the hands of the Clerk of the House, normally an apolitical position. In the House it’s not clear how a non-seating strategy would work.
In the Senate, if I understand the rules correctly, it’s the Vice President, as president of the Senate, who reviews the certificates of election and swears in the new members. It’s basically a replay of the Mike Pence drama in 2021. The Vice President’s role is purely ministerial. He’s not permitted to make a substantive judgment about the legitimacy of the certificates of election. He’s just there to open the envelopes and see if they’re from the states in question and that’s it. But he could do some version of what Trump wanted Pence to do in 2021, simply say they’re not in order and not seat the new lawmakers. There’s zero legal basis for doing that. But what the recourse would be isn’t clear.
In my view, if the Democrats won control of Congress and Trump, through obedient members of Congress, somehow managed not to seat them, that would mean the federal government ceases to exist as a legitimate governmental power. All bets are off. I want to be clear that I don’t think they would be able to pull this off for all the reasons I’ve described. But it’s also clear they’ll try basically anything. And Trump clearly sees the loss of Congress as an existential threat. So I raise the scenario simply so that everyone relevant can prepare for it, game it out, do things now that cut off that route to retain power illegally.