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The Slaughter Solution Will Probably Pass Constitutional Muster | Main | US Military Not Allowed To Fly Flag Over Compound In Haiti
March 16, 2010

Tea Party Seeks Recall of Senator Menendez (D-NJ)

The good news is that the court is permitting Tea Partiers to collect petitions to recall Menendez. The bad news is that they are staying the actual recall, should it happen, until they rule on the constitutional question as to whether you can recall a federal official -- and I'm pretty sure you can't.

It's a New Jersey appeals court which has ruled on this.

New Jersey is among the states that allow recalls of statewide elected officials. There is no right to recall congressmen and senators under the U.S. Constitution. Besides U.S. senators, the only statewide elected officials in New Jersey are the governor and lieutenant governor.

The court says it would take up the question if the petition drive succeeds.

Here is the problem, as I understand it. A while ago there was a push to get Congressmen and Senators term-limited -- by operation of law.

These efforts were ruled invalid. The theory is that the Constitution itself specifies the two or three qualifications for office, and "has not served more than x terms" is not among them. So judges reasoned that by specifying these qualifications, and no further qualifications, the Constitution intended these would be the only qualifications, and laws which claimed some new qualification -- such as "has not served more than x terms" -- were contrary to the Constitution.

Now any recall attempt has the precise same problem. If the Constitution says that a Senator must be 30 years old, and that's it as far as qualifications, judges will almost surely follow their old rulings and deem that a recall effort has no effect. Because the Constitution doesn't say a Senator must be "30 years old, and shall not have been recalled by his constituents."

Update: I see in that link the Court has blessed congressionally-passed additional burdens on office-holders. That is, they'll allow the federal government to pass additional burdens. But not state governments.

State officials are a different matter. Many state constitutions provide for recall, or else laws have been passed providing for recall, and the courts have generally allowed these.

In case you were wondering why you send me tips about recall efforts for this guy or that guy, but I don't post them, this is why. According to the precedent I know of, you can't do this. You'd have to first amend the Constitution to permit recalls (and/or term limits, and/or whatever other additional qualifications for office you'd like to specify).

Understand I'm not telling you the way I'd like this stuff to come out, necessarily. I hate Robert Menendez. But previous rulings have rejected term limits as unconstitutional, and the same logic should apply to recalls.

Nuance: Maybe this isn't automatically unconstitutional, as I thought. Stevens' majority opinion stated:

Finally, state-imposed restrictions, unlike the congressionally imposed restrictions at issue in Powell, violate a third idea central to this basic principle: that the right to choose representatives belongs not to the States, but to the people. ... Following the adoption of the 17th Amendment in 1913, this ideal was extended to elections for the Senate. The Congress of the United States, therefore, is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people.

Well! If that's the objection -- that the right to elect (and not elect) federal officials lies with the people, not the state itself -- well, a recall petition certainly is by the people, eh?

Thanks to DrewM. for the link to the US Term Limits, Inc. case, and thanks to Mike for the main tip.

digg this
posted by Ace at 01:28 PM

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