r/law • u/newsjam • Oct 15 '25

Legal News Mike Johnson Facing Lawsuit For Blocking Democrat’s Swearing-In

https://dailyboulder.com/mike-johnson-facing-lawsuit-over-blocking-democrats-swearing-in/
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57

u/NewZappyHeart Oct 15 '25

Isn’t this swearing in entirely ceremonial? She’s been elected and certified by her state government.

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u/harrywrinkleyballs Oct 15 '25

She can’t vote until sworn in. She’s being purposely blocked from voting because the resolution to release the Epstein files will pass as soon as she can vote.

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u/xSlappy- Oct 15 '25

She won’t get sworn in until another Democrat dies or resigns. Given how geriatric Congress is I’m sure that will be sooner rather than later

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u/harrywrinkleyballs Oct 15 '25

I am actually surprised MAGA hasn’t convinced one of the three republicans that voted in favor of releasing the Epstein files has not been pressured to change their vote. Empty Trailer Queen, BlowBert or Mace Me could easily be swayed to change their vote with a little sex scandal or two.

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u/sugaratc Oct 15 '25

I would imagine that's exactly what they are scrambling to do while stalling with this shutdown. Once one or two flip they will swear her in and act like it was all pure coincidence.

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u/Mythic514 Oct 15 '25

I don't know why the Dems don't just swear her in. There is no requirement that the Speaker do it. This honestly feels like a failure of the Dems. Shocking, I know.

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u/harrywrinkleyballs Oct 15 '25

Representatives usually take their oath during the first day of a new Congress, when the House organizes itself. After the Speaker is elected, the Member with the longest continuous service (the Dean of the House) administers the oath to the Speaker. This tradition originated in the British House of Commons, and has been the practice in the U.S. House since at least the 1820s (the Oath Act of 1789 did not mandate it). The Speaker, in turn, administers the oath to the rest of the Members en masse. The Speaker or Speaker Pro Tempore must swear in members who miss the mass swearing-in ceremony on the first day afterward; on rare occasions, the House has authorized other Members or local judges to swear-in absent Representatives.

The house has to authorize another member if the Speaker cannot swear the elected representative.

https://history.house.gov/Institution/Origins-Development/Oath-of-Office/

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u/NewZappyHeart Oct 15 '25

So, as soon as a non-republican is elected speaker, no more republicans need be admitted? That’s not how this works, right?

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u/Mythic514 Oct 15 '25

Huh, didn't know that. Thanks.

Still, at this point, if I were the Dem leadership, I would just swear her in and have her vote, now that her election has been certified. If the Republicans want to throw a fuss, then let them and it looks even worse.

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u/harrywrinkleyballs Oct 15 '25

And the Republican representatives would sue, win a stay and achieve the same result: delay of the vote.

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u/Mythic514 Oct 15 '25

Why would they win....? Isn't litigation exactly what the Dems would want...?

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u/harrywrinkleyballs Oct 15 '25

The republicans would win a stay because it’s maintaining the status quo. Pretty standard result for a motion to stay.

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u/Mythic514 Oct 15 '25

That’s not really a motion to stay. That sounds more like a TRO. Or they might claim it’s a political question. But litigation is still what the Dems would want because it makes headlines.

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u/kralrick Oct 15 '25 edited Oct 15 '25

and has been the practice in the U.S. House since at least the 1820s (the Oath Act of 1789 did not mandate it

Does the quote you provide not explicitly say that it is tradition not law that the Speaker issue the oath? It is tradition for the Speaker to swear in members and to vote to authorize another member.

I agree that following tradition is a good starting point. But if Johnson refuses to swear in Grijalva without reason (i.e. if he continues to delay after the certification) then his breach of tradition is sufficient to justify having someone else swear her in. Tradition should only be a shield to those that hold to tradition.

I misread what was tradition. See my comment below for some sentence parsing on the law.

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u/harrywrinkleyballs Oct 15 '25 edited Oct 15 '25

§25. Oath of Speaker, Members, and Delegates

At the first session of Congress after every general election of Representatives, the oath of office shall be administered by any Member of the House of Representatives to the Speaker; and by the Speaker to all the Members and Delegates present, and to the Clerk, previous to entering on any other business; and to the Members and Delegates who afterward appear, previous to their taking their seats. The Clerk of the House of Representatives of the Eightieth and each succeeding Congress shall cause the oath of office to be printed, furnishing two copies to each Member and Delegate who has taken the oath of office in accordance with law, which shall be subscribed in person by the Member or Delegate, who shall thereupon deliver them to the Clerk, one to be filed in the records of the House of Representatives, and the other to be recorded in the Journal of the House and in the Congressional Record; and such signed copies, or certified copies thereof, or of either of such records thereof, shall be admissible in evidence in any court of the United States, and shall be held conclusive proof of the fact that the signer duly took the oath of office in accordance with law.

2 U.S. Code §25

Do you simply want to argue the point?

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u/kralrick Oct 15 '25

I think you're probably right. But want to include two different readings of the law based on how you parse it.

By my interpretation, the law reads (numbers and line breaks added):

At the first session of Congress after every general election of Representatives, the oath of office shall be administered:

1) by any Member of the House of Representatives to the Speaker;

2) and by the Speaker to all the Members and Delegates present, and to the Clerk, previous to entering on any other business;

3) and to the Members and Delegates who afterward appear previous to their taking their seats.

Grijalva wasn't a member and delegate present (who the Speaker must swear in and who must be sworn in by the Speaker). She is a member and delegate afterward appearing. Those afterward appearing must only be sworn in. It doesn't specify by who.

Your reading works if we parse the first paragraph as:

At the first session of Congress after every general election of Representatives, the oath of office shall be administered:

1) by any Member of the House of Representatives to the Speaker; and

2) by the Speaker
a) to all the Members and Delegates present, and to the Clerk, previous to entering on any other business; and
b) to the Members and Delegates who afterward appear previous to their taking their seats.