Friday, February 5, 2010

Can A U.S. Senator Be Recalled?

There's a lot of talk around the country and particularly here in Nebraska about whether states have the ability to recall U.S. Senators. We frankly would like to have the ability to recall the disgusting Judas Ben Nelson, but frankly we've doubted the constitutionality of it even if it were provided in the Nebraska Constitution (which it isn't) or if such a constitutional amendment were passed. However, we read a persuasive argument today by John Armor, 'The Right to Recall the Rascals (U.S. Senators)' which may at lest be worth a read if your interested in the topic at:

Here are a few of his points:
  • The U.S. Constitution states no right to recall federal officials. But that’s not the end of the inquiry, only the beginning.

  • There are two main reasons why the right of recall can be established for all elected officials, including Members of Congress. One is that the Constitution delegates general election law to the states. The other is that the 10th Amendment reserves to the states and the people all rights not delegated to the national government.

  • The right of recall has been rarely used, but it is older than the United States. It appears in the Massachusetts Charter of 1691. Several states included it when they rewrote their constitutions after the American Revolution. Recall of U.S. Senators was specifically included after 1789. It was not by popular vote, but by vote of the state legislatures, the “electorate” for Senators per the original Constitution.

  • Whether or not the Court was correct in saying that term limits constitute a qualification of office, recall is not a qualification of office but merely part of the electoral process, which was left to the states.

  • Around the turn of the 20th century, popular recall provisions were inserted in the constitutions of numerous states. Some referred to recalling federal officials. The clearest language is a more recent addition to the New Jersey constitution, which became effective in 1995:

  • The Constitutional Convention debated the establishment of a federal (or national) election law. The problem was sharp differences among the states on who were “electors” who were allowed to vote.
    The compromise struck at the Convention appears in the Constitution:
    “Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” In short, the details of federal elections were left to state election laws.

  • The Constitution gives Congress the power to regulate federal elections, which it has exercised on voting rights and on federal election funding, but not on election laws generally.

  • In 1912, Congress passed the 17th Amendment, changing the election of Senators from choice by legislatures to direct election by the people. The Amendment repeats the language about “the most numerous branch,” again delegating details of election law to the states. Congress wrote this, knowing that some states had recall provisions.

  • The final point is the 10th Amendment. It reads:
    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
    Note that the people of New Jersey used similar language in declaring their right to recall their federal officials.

  • In 2010, Secretaries of State in two states have decided whether their state recall provisions apply to Senators from those states. In Louisiana, the Secretary has approved the form of petitions to recall U.S. Sen. Mary Landrieu. In New Jersey, the Secretary has ruled against the form of petitions to recall U.S. Sen. Robert Menendez. The latter decision has been appealed on a fast track basis in the New Jersey courts. It also may be withdrawn and reversed, since a new Governor, Chris Christie, has just been sworn in.

  • Both the Constitutional Convention and Congress itself in the 17th Amendment delegated election laws to the states themselves. In addition, the right of popular sovereignty is basic to all American governments. Thomas Jefferson wrote in the Declaration of Independence that “governments... deriv[e] their just powers from the consent of the governed.”

  • The proper conclusion is that the right of recall does remain with the citizens of each state, subject to the election laws of each state. This will remain true unless and until the highest court of competent jurisdiction rules that this provision of the New Jersey Constitution is unconstitutional under the U.S. Constitution.

1 comment:

Glenn said...

What the author said regarding "recalling senators" is essentially correct. This topic was discussed at the length during the Great Compromise (frequently called The Connecticut Compromise". The debate was so heated that the Convention form a Committee to resolved this and similar issues. True, New Jersey was concerned about samll states and control of senators in Congress. The compromise was that each state, irespective of size, would get two senators, those senators would be elected by the State Legislatures, and HERE ARE THE TWO POINTS THAT SOLD THE COMPROMISE:

(1) Article I, Section 5, para 1: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members...." EXPLANATION: Eventhough you elect/select a Member of Congress that person still must be seated by Congress (Senate or House of Representatives). There are cases where an individual has been elected but not seated by Congress.

(2) Article I, Section 5, para 2: "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and with the Concurrence of two thirds, expel a Member. EXPLANATION: Worthiness to serve in Congress is determined by Congress itself...NOT THE STATES.

Here's what James Madison said about the tenure of Senators in Federalist Paper #62, February 27, 1788: "The mutability (suject to change) in the public councils, arising from a rapid succession of new members, however qualified they may be, points out in the strongest manner, the necessity of some stable institution in the government. Every new election in the states, is found to change one half of the representatives. From a change of men must proceed a change of opinion, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence, and every prospect of success."

In summary, the author made some good points. However, the Constitution STRICTLY forbids this action.