Suppose Congress threw a party and nobody came....

[TechBear_Seattle]

A thought experiment; please share your thoughts.

Setup: The 2008 elections provide a major sweep for Democrats: they get a veto-proof majority in the House and a solid majority in the Senate. Congressional Democrats have issued an action list which includes formal inquiries into the transgressions of the Bush administration, curbing the role of mercenary corporations like Blackwater in US military actions, pulling out from Iraq and Afghanistan and improving access to health care. (You see why this is just a thought experiement, but moving on....)

Suppose: A group of Republicans cry in outrage that they will not take part in "the demonization of President Bush's achievements" and withdraw from Congress. They do not resign, they simply refuse to show up for work. The US Constitution states, in Article I, Section 5, ... a majority of each (chamber) shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide. Is there any precedent for this clause being used, and if so, how was it done? Would it likely be invoked if the number of absent members does not threaten the quorum?

Suppose: The House of Representatives threatens to use the above clause in the Constitution and issues what amounts to an arrest order for the absent representatives. In response, a state legislature passes a bill that summons home its entire Congressional delegation. Or maybe a state does this on its own in response to "the demonization of President Bush' achievements." It is expressly NOT a declaration of secession, although the state has effectively removed itself from the federal government. The governor signs the legislation. Does this law have any legal standing? If a member of the state's delegation refuses to acknowledge the call, can the state compel his removal from office? What if the legislation ordered the recall of only a few Congressmen, or declared the seats vacant and held new elections?

Suppose: The governors of the affected states refuse to name replacements as provided by Article I, Section 2, para. 4 and Amendment 17, para. 2? Would they be in violation of the Constitution, which uses the word "shall"? Could they argue that such power exists only when there is a vacancy, and walkouts and recalls do not count as vacancies?

Suppose: The House or Senate invokes its own power, granted in Article I, Section 5, para. 1, to "be the judge of the elections, returns and qualifications of its own members" and declares that the absent members are no longer qualified to hold their offices. Can they then force the state governors to chose replacements? Can they simply state that while those seats are kept vacant, they no longer count towards the majority needed to pass legislation or otherwise conduct business?


For those interested in why I ask about these scenarios, I am working on an idea about what might lead to a second Civil War, starting with the political polarization of the country as it is now and working in lessons (hopefully) learned 150 years ago in our last civil war.