By yourNEWS Media Newsroom.
Rep. Tim Burchett, R-Tenn., says he plans to attempt an unusual House maneuver in January to prevent New York Democratic congressional nominee Darializa Avila Chevalier from taking the oath of office if she wins the Nov. 3 general election, setting up a potential constitutional dispute over Congress’ authority to exclude an elected representative.
Burchett told the New York Post that he intends to raise the challenge when the next Congress convenes, arguing that an earlier social media post by Chevalier involving the American flag calls into question whether she should be permitted to take an oath to support the Constitution.
“You take an oath to uphold the Constitution, and and you’re pretty much disavowing it right there. I just think we’ve lost our compass,” Burchett said.
His planned challenge centers on a 2019 post attributed to Chevalier in which she said she had used an American flag as a napkin. The post resurfaced during her congressional campaign and became a source of criticism from Republicans and other opponents. Chevalier has since expressed regret over the comment and deleted it, according to the Post.
Burchett said the remark was particularly offensive to him because of his family’s military history. His father served as a Marine during World War II, while his uncle served aboard a Navy destroyer.
The Tennessee Republican said he intends to seek a House vote before Chevalier could be sworn in, relying on the chamber’s authority to judge the elections, returns and qualifications of its members. Burchett suggested a simple majority could be asked to prevent her from being seated.
“If we vote to seat them, is one Democrat going to say no? I’m not going to vote to seat those people. Are they gonna say anything? Democrats died for this country as well as Republicans did,” Burchett said.
Whether the House could legally prevent Chevalier from taking office solely because of the flag comment is considerably more complicated.
Article I of the Constitution establishes three basic qualifications for service in the House: a representative must be at least 25 years old, have been a U.S. citizen for at least seven years and, when elected, be an inhabitant of the state represented. The House is also empowered to judge the elections, returns and qualifications of its members, as outlined by Congress’ Constitution Annotated.
The Supreme Court significantly limited the House’s ability to add requirements beyond those constitutional qualifications in its 1969 decision in Powell v. McCormack. The case arose after the House refused to seat New York Rep. Adam Clayton Powell Jr. despite his reelection.
The court concluded that the House does not have authority to exclude a duly elected person who satisfies the membership qualifications expressly stated in the Constitution. Congress’ own Constitution Annotated discussion of the ruling notes the distinction between excluding a member-elect and expelling someone who has already been seated.
Expulsion operates under a different constitutional provision and requires a two-thirds vote of the House. Burchett’s proposal, by contrast, would seek to stop Chevalier before she becomes a sitting member, according to the Post.
That distinction could make any attempt to block her on grounds unrelated to age, citizenship, residency or the validity of the election vulnerable to a legal challenge if she wins.
Chevalier is the Democratic nominee for New York’s 13th Congressional District after defeating incumbent Rep. Adriano Espaillat in the June Democratic primary. The Associated Press called the primary for Chevalier on June 23, marking a major victory for the Democratic Socialists of America-backed challenger.
Federal Election Commission records identify Chevalier as the Democratic candidate for New York’s 13th District and list Darializa for Congress as her principal campaign committee. She is scheduled to face Republican nominee Jomo M. Williams in the Nov. 3 general election.
Chevalier has been closely associated with the Democratic Socialists of America throughout the campaign. The New York City chapter of DSA endorsed her in January and committed its members to organizing, fundraising and volunteering on her behalf. The organization later referred to Chevalier as a fellow DSA member while promoting her campaign.
Her campaign has emphasized affordable housing, organized labor, health care and changes to federal immigration and foreign policies. DSA has also highlighted her previous work as a community organizer and her involvement in protests and advocacy surrounding immigration enforcement and Palestinian issues.
Chevalier’s 2019 flag post became a national controversy after screenshots circulated during the congressional campaign. Independent fact-checking later concluded that the post was authentic. The controversy intensified after she won the Democratic nomination, putting renewed attention on statements made years before entering the congressional race.
Burchett has framed his proposed challenge not simply as an objection to Chevalier’s politics but as a question about whether someone who made such a statement about the flag should be permitted to swear the congressional oath.
House members are required to take an oath supporting and defending the Constitution before entering upon their duties. Federal law provides for the oath to be administered at the beginning of a new Congress before members take their seats, according to the House’s official statutory provisions governing the oath.
A member’s political views or previous criticism of the United States, however, are not among the qualifications for office specified in Article I.
The issue could therefore put Burchett’s planned parliamentary action into conflict with the Supreme Court precedent established by Powell if Chevalier wins the election and otherwise satisfies the constitutional requirements for membership.
The House has broad authority over its internal proceedings and can investigate contested elections or questions concerning whether a member meets constitutional qualifications. The Constitution also gives the chamber power to discipline its sitting members and, with a two-thirds vote, expel them.
The Supreme Court has nevertheless treated exclusion and expulsion as legally distinct actions, finding that the House cannot use its authority over qualifications to create additional conditions for taking office beyond those established by the Constitution.
Burchett’s announcement means the dispute could move from campaign politics to the House floor if Chevalier wins New York’s 13th District in November, potentially forcing lawmakers to decide whether to entertain the challenge before the new member-elect takes the oath.
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