There’s a move afoot to recall Senator Robert Menendez (D-NJ). New Jersey law authorizes such recalls, but it seems likely that the U.S. Constitution does not allow a state to force the removal of a senator based on a recall vote. The Seventeenth Amendment provides that the Senators shall be “elected by the people thereof, for six years,” and the Constitution provides for no means by which this term can be shortened by the voters of a state. A state can no more force the removal of a Senator by recall than it can force its Senators to leave office after four years instead of six. (For more, see this Congressional Research Service report on the subject.)
Because removal of a sitting Senator by the voters is likely unconstitutional, the then-New Jersey Secretary of State, Nina Mitchell Wells, refused to approve the proposed petition (something the Secretary of State is apparently required to do before the signatures can be gathered). The question is now being litigated, with a hearing set for Feb. 26.
Here’s my question: Accepting, as I do, that a state’s voters may not remove an elected Senator, would it be proper to still allow the recall to go forward, and then have the result have an advisory effect, even if it can’t have a legally binding effect? In this respect, a majority “yes” vote on a recall would literally be a “summon[ing] to return,” though not a legally binding summoning: It would express the voters’ desire that the Senator resign and return to private life, and the Senator would then decide what moral and political effect this should have.
The argument would be this: There should be nothing unconstitutional about the voters’ expressing their views that someone should resign, even if the expression is done through the formal process of a state-organized vote. The only unconstitutional thing would be to try to force the Senator to give up his office. So the signature gathering and election (if enough signatures are gathered) should be constitutionally permissible, and should have the maximal constitutionally permissible effect — which could indeed be a significant political effect, even if not a morally binding one.
Such advisory recalls don’t take place these days. But they are authorized expressly by at least one state — Arizona (see Title 19, chapter 2, of the Revised Statutes, especially article 2). And such advisory recalls seem consistent with the relationship between Senators and state legislatures in the 1800s, when Senators were elected by state legislatures. From Josh Chafetz’s Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L.J. 177, 214 (2008):
As Professor Riker puts it, “[e]lection by state legislatures implied accountability to them,” and the legislatures demanded this accountability via instructions on how to vote, a practice carried over from the Continental Congress. When a legislature had strong opinions about an issue pending before Congress, it would pass a resolution of the following form: “Be it resolved that our Senators in Congress are hereby instructed, and our Representatives are requested, to vote for ….”Without the recall provision of the Articles of Confederation, the only formal sanction the legislature had was a threat not to reelect — but because senators’ terms were much longer than those of state representatives, this was an uncertain threat: the legislative majority that the senators disobeyed might no longer be in power when the senators were up for reelection. Remarkably, however, senators’ sense of honor seems to have served to enforce instructions in the early Republic. Beginning with John Quincy Adams in 1808, senators who were unwilling to follow instructions from their state legislatures were expected to resign. Although the practice was not universally followed, Professor Riker counts fifteen such “forced resignations” (and another six “almost forced” resignations) between 1808 and 1854.
Senators were thus seen as being under continued authority of the legislature that elected them; and while they couldn’t be forced to do something, they could be advised to do it — and they were expected to follow the advice or resign. If that authorized instructions to vote, it seems to me it could likewise authorize instructions to resign. (To be sure, the instruction to resign might be less fair to the Senator, since it doesn’t give him an explicit roadmap for keeping his office; but the principle strikes me as similar.) The Seventeenth Amendment provided that the voters, rather than the state legislatures, should elect Senators. But that would simply mean that the voters could likewise have the power to issue advisory instructions to Senators, and if necessary advisory demands to resign.
The proper question, I think, is the standard “severability” question — whether the New Jersey voters who enacted the recall would have preferred, if the binding recall is held unconstitutional, (1) to allow the recall to go forward with merely advisory force, or (2) to not have any recall vote as to federal officeholders. This is of course a hard sort of counterfactual inquiry to answer. But that’s what pretty regularly done by courts that are trying to figure out whether the invalidity of one part of a statute or a state constitutional provision (whether enacted by the legislature or by the voters) should lead to the invalidation of the entire thing. And it’s largely inevitable if we want courts to try to salvage as much of the provision as possible.
Here, I think, there are two good arguments against the advisory recall. One is cost: It’s not clear that the voters who were willing to spend state money and voter time to authorize a binding recall would have been willing to do the same for a merely advisory recall.
But the other, more serious, argument is the likelihood that an advisory vote would be a poor measure of actual public sentiment. Precisely because the election is merely advisory, many voters might not be inclined to spend their time and effort casting a vote. As a result, the results might be skewed — even more than a typical election skews them — in favor of those who feel especially strongly about the issue. And a sitting Senator might face something that appears like a vote of no confidence by the state’s voters, when it’s really a vote of a very small and unrepresentative segment of the electorate. (Thanks to Scott Rafferty for pointing this out.)
In any case, that’s my tentative thinking on the matter; but I thought I’d raise the general issue, because it’s likely to get lost in the discussion of whether a binding recall is constitutionally permissible. As I said, I think it’s unconstitutional, but that shouldn’t settle the question of whether the recall vote is constitutionally permissible.
Cornellian says:
I don’t see a constitutional problem with an advisory vote. It’s basically just an opinion poll. But I don’t think you can go ahead with an unconstitutional mandatory recall vote on the theory that it only has an advisory effect. That assumes that people will know they are voting for something other than what the statute explicitly says and that they’ll vote the same way in a mandatory recall as they might in an aadvisory recall. It’s quite possible that someone might vote to recall in an advisory recall just to scare their senator into line, but wouldn’t vote that way in a real recall because he thinks the alternatives would be even worse.
February 15, 2010, 5:42 pmSoronel Haetir says:
Being generally stuck with the folks we elect is actually something I consider a strength of the US system when compared to cabinet systems where new elections can be forced early by whim or perceived political fortune.
I would say that a state should not help organize such an advisory recall election. Let people gather signatures on a regular petition and submit that to the offending office holder. The people elected him knowing that short of major criminality they would be stuck with him.
February 15, 2010, 6:05 pmJohn Burgess says:
I don’t see a problem with an advisory recall, either. If advised to resign, the Senator can oblige the opinion of his constituents or ignore them. To ignore them will necessarily bring repercussions–that DC pad might seem awfully welcome.
This being NJ, however, an advisory recall might only be the prelude to more forceful advice, like a horse head in his bed.
February 15, 2010, 6:07 pmGov98 says:
Here, I think, there are two good arguments against the advisory recall. One is cost: It’s not clear that the voters who were willing to spend state money and voter time to authorize a binding recall would have been willing to do the same for a merely advisory recall.
But the other, more serious, argument is the likelihood that an advisory vote would be a poor measure of actual public sentiment. Precisely because the election is merely advisory, many voters might not be inclined to spend their time and effort casting a vote. As a result, the results might be skewed — even more than a typical election skews them — in favor of those who feel especially strongly about the issue. And a sitting Senator might face something that appears like a vote of no confidence by the state’s voters, when it’s really a vote of a very small and unrepresentative segment of the electorate. (Thanks to a participant on the election-law discussion list for pointing this out.)
Here’s the thing though…as to the first point as to the item’s cost, if the people of the State of New Jersey have decided to have advisory recalls and so they write it into their constitution then haven’t the people already stated that they are willing to spend their money on the recall? I mean at least if it’s in the constitution then the governmental system certainly calls for that spending as part of the agreement to the governmental system.
As to the second point as to whether it’s accurate…What’s the definition? Every vote is only compared as against who voted not the GENERAL WILL OF THE INCHOATE PUBLIC. So who cares? That’s the way every vote is binding or not, it reflects the will of those who voted.
February 15, 2010, 6:11 pmPerseus says:
Another bad effect is that precisely because it’s an official vote (even if it’s without legal effect and even if it’s an accurate measurement of public sentiment at the time), it would be viewed as carrying more weight than opinion polls (which are bad enough) and thus further undermine the notion that senators are given longer terms in order to be the saucer cooling the tea.
February 15, 2010, 6:14 pmJohnF says:
It would be an outrage to spend state money on an opinion poll. That is not what the state constitution is about–it is about an actual recall, which this is not. So what justifies spending any state money on this? Much less state employee time and state-owned voting equipment, and state-owned locales?
February 15, 2010, 6:16 pmLaura(southernxyl) says:
I agree. While we were still living in Memphis, there was a petition being circulated to recall the then-mayor, Herenton. It got a lot of attention and a lot of signatures. While I hadn’t voted for him, and thought he was an absolutely wretched mayor, I did not sign the petition. He was legally elected and that’s the way the mop flops. Pick better next time.
February 15, 2010, 6:38 pmzuch says:
Aside from non-representative sampling, one would also have to wonder what count, margin, percentage, whatever should be considered sufficient to constitute a “recall advisory”.
But I’d note that such as Dick Ctheney would not step down even when only 1 out of every 7 people approved of him….
Cheers,
February 15, 2010, 6:55 pmzuch says:
… and JOOC, just who is it that is interested in conducting this exercise, and with whose money?….
Cheers,
February 15, 2010, 6:57 pmjcm says:
The same thesis was floated in Venezuela before a recall could be launches and the government rejected it. They did care even about a consultive referendum. They called it a deviation of procedure . using a procedure devised for some end pursuing a non intended by the law purpose
February 15, 2010, 7:10 pmSteve says:
State services in New Jersey are being slashed to the bone and someone thinks it’s a good idea to waste taxpayer money on an “advisory recall” with no legal effect whatsoever? That person should be drawn and quartered.
February 15, 2010, 7:13 pmPeteP says:
“Accepting, as I do, that a state’s voters may not remove an elected Senator”
Prof V, if you accept the idea that states may ONLY ‘elect Senators for a term of 6 years’ as per the Seventeenth Amendment, then how do you account for the presence in Congress today of Burris, Gillibrand, Brown,etc ? Are they ‘unConstitutional ‘ also ? The C makes no provision for the means by which they were elected, does it ?
If they are in fact Constitutional, then this gives rise to an interpretation of the 17th’ that States have some various degrees of latitude in how they figure out who is a Senator and who isn’t, right ? Thus, a recall is not inherently ‘unConstitutional’, any more than a provisional election with a term less than 6 years is.
February 15, 2010, 7:24 pmtroll_dc2 says:
PeteP, the second paragraph of the 17th amendment states: “When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”
So appointment by the governor is permitted unless the state legislature directs otherwise.
February 15, 2010, 7:31 pmShelbyC says:
I wonder if a Senator can be required by state law to resign?
February 15, 2010, 7:39 pmOren says:
The citizens that adopted the measure in their State Constitution — the very document that allows the State to levy taxes in the first place.
You need to reread the 17th amendment.
February 15, 2010, 7:42 pmOren says:
No chance.
February 15, 2010, 7:43 pmShelbyC says:
Could you please elaborate? :-).
February 15, 2010, 7:48 pmMark Field says:
I agree with Perseus and Soronel.
February 15, 2010, 7:56 pmmls says:
It seems to me that the first question one would ask is whether the NJ law applies to US Senators. If it is ambiguous, then I would think the court will hold that the law is inapplicable since one would presume that NJ would not intend to authorize something that no state has ever done before and which, as Professor Volokh notes, is likely unconstitutional.
OTOH, if the law did apply to US Senators, then I would say that the court should let the recall go forward, on the theory that its effect is ultimately one that rests with the Senate itself.
The idea of advisory recalls or advisory instructions is an interesting one. I don’t see why there would be a constitutional objection to that.
February 15, 2010, 7:56 pmOff Kilter says:
“The idea of advisory recalls or advisory instructions is an interesting one. I don’t see why there would be a constitutional objection to that.”
Can we do this for President too?
February 15, 2010, 8:05 pmpmorem says:
I don’t believe “advisory” would be the correct term.
As I see it, if the recall passed, the State of New Jersey would inform the Senate that it considered Menendez to be recalled. At that point, it would be up to the Senate to make a determination as to the significance of that statement. It would be within the rights of the Senate to put the matter to vote, and by a 2/3rds majority remove Menendez.
Resignation by Menendez would not be required.
This differs from an ordinary recall only in that the burden of enforcement would fall upon the Senate, which would have an option of declining to enforce it.
February 15, 2010, 8:11 pmJohnO says:
I read U.S. Term Limits (which I think was wrongly decided) as likely precluding a state law that would require a senator to resign.
February 15, 2010, 8:18 pmpublic_defender says:
One difficulty in severability is whether a court could craft a coherent, new statute. If the vote is merely advisory, what precise words go on the ballot?
“We, the people of New Jersey:
Or do you just have a ballot that says that you are recalling him when you are not? That would require the ballot to be an outright falsehood.
Severance can work when courts can cut things out to leave a coherent statute. But adding language to patch up what’s left is more difficult.
February 15, 2010, 8:18 pmPerseus says:
Hell (or a small portion thereof) has frozen over.
February 15, 2010, 8:38 pmDave N. says:
I suggest the recall election be held on November 6, 2012.
February 15, 2010, 8:44 pmSuperSkeptic says:
As a libertarian, morally, the only thing I like about this is the explicit distinction between an action using force and an action not using force.
February 15, 2010, 8:55 pmBrett Bellmore says:
I would have thought the relevant question was whether or not the NJ constitution binds officers of the NJ government. If it does, it seems to me they’re obligated to allow the recall petition, and hold the vote if enough signatures are obtained. When the vote is held, and the recall authorized by a vote of the people, then, and ONLY then, does the question of whether it’s binding on the Senator become relevant. Everything prior to that is required by the state constitution.
February 15, 2010, 9:09 pmArthur Kirkland says:
Does anyone know (1) whether those proposing a vote are a few fringers, or a substantial group, and (2) the asserted offenses prompting this proposal?
My wagers: (1) fringers and (2) affronts to right-wing dogma.
February 15, 2010, 9:17 pmAk Mike says:
The Alaska supreme court decided a similar issue in 2006. Kohlhaas v. State, 147 P.3d 714 (Alaska 2006). An initiative to have the state pursue secession was struck down because secession was unconstitutional, and the initiative could not pursue an illegal objective. The court might have allowed the initiative as a kind of opinion poll, but as to that I agree with the court: the initiative (like the recall) is a serious matter and should be used for its designated purpose or not at all.
Oddly enough I cited the same case in a thread about secession a few days ago.
February 15, 2010, 9:33 pmAn Advisory Recall of U.S. Senators? | Liberal Whoppers says:
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February 15, 2010, 10:25 pmDaniel Silberstein says:
Here is how I framed the issue in my brief:
Can the State, after amending its Constitution and passing legislation to guarantee its citizens access to a formal, State-endorsed mechanism to foster collective “core political speech”, deny its citizens access to that mechanism because of the content of their political message?
February 15, 2010, 10:36 pmDaniel Silberstein says:
Steve says:
“State services in New Jersey are being slashed to the bone and someone thinks it’s a good idea to waste taxpayer money on an “advisory recall” with no legal effect whatsoever? That person should be drawn and quartered.”
Well, Steve, Mr. Menendez is in large part responsible for New Jersey’s horrible financial condition. We do not have the right to have him drawn and quartered and the practice of tarring and feathering is out-dated. The best we can do is a recall, advisory or otherwise.
February 15, 2010, 10:45 pmS says:
Looks like that guy in Alaska tried to take a second bite at secession and just lost again: http://www.courts.alaska.gov/ops/sp-6450.pdf
February 15, 2010, 10:47 pmEric says:
I am not a lawer or a constitutional scholer. However, I can read and have a operational understanding of the writted language. The people making the argument against the recall have not looked at the 10th ammendment. “power not granted in this constitition nor prohibited to the states, are reserved to the states or to the people” (or words to that effect). The way I see it, if the state has law that provides for recall of a elected offical, and that power is not prohibided to the state by the consitution, (please show me where i am wrong in the plain text), then the power to recall resides in the people of the several states. End of argument.
February 15, 2010, 10:50 pmMartinned says:
Did you see the part about senators having a term of 6 years?
February 15, 2010, 10:55 pmjccamp says:
“…whether the recall vote is constitutionally permissible…”
It would seem as though the vote is permissible. Meaningless, foolish and wasteful, but permissible.
February 15, 2010, 10:56 pmGov98 says:
Well, here in California a Governor has a term of 4 years, but he can still be recalled.
I have to say I like the 10th amendment argument as to the efficacy of the recall.
February 15, 2010, 10:57 pmMartinned says:
That’s because the California Constitution creates that exception to the 4 year rule. Since the Federal Constitution creates no such exception, the six years stand.
February 15, 2010, 11:01 pmRich says:
I don’t think there would be any violation of the U.S. Constitution by having an advisory recall, but that isn’t the choice facing the NJ Secretary of State and the New Jersey courts. Their choice is whether if (1) the recall statute applies to federal officials; and (2) whether applying the statute is in violation of the U.S. Constitution. If the determination is that it is in violation, the appropriate remedy is to invalidate the statute as applied, not just the part that says the officer shall cease to hold office.
February 15, 2010, 11:28 pmGuest12345 says:
Care to expand on that idea? It seems to me that lots of senators are elected for terms of less than six years. Otherwise, after a couple hundred years of senators dropping dead while in office, there is no way that elections would all be neatly happening every two years. Consider Scott Brown. It is my understanding that, assuming he chooses to do so, he will be running for office again in just two years.
February 15, 2010, 11:28 pmMark Field says:
Global Warming will be kicking in any day now.
February 15, 2010, 11:44 pmButternut says:
Hmmm…an elected representative above recall. Who’d a thunk.
February 15, 2010, 11:48 pmPerseus says:
Quite so. And the lack of an exception in the U.S. Constitution is in stark contrast to the Articles of Confederation, which allowed each state “to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the Year.”
February 15, 2010, 11:50 pmCornellian says:
The way I see it, if the state has law that provides for recall of a elected offical, and that power is not prohibided to the state by the consitution, (please show me where i am wrong in the plain text), then the power to recall resides in the people of the several states. End of argument.
The plain text says that they’re elected for six year terms. Why doesn’t that prohibit a state law saying senators are elected for an indefinite term subject to recall?
February 15, 2010, 11:51 pmJacob Berlove says:
Actually, Brown was elected to fill the rest of Ted Kennedy’s term, which expires in 2012.
February 15, 2010, 11:56 pmtired of blogs says:
Asked and answered. See above.
February 16, 2010, 12:12 amBama 1L says:
People who want a binding recall to be constitutional should go read the dissent in U.S. Term Limits, Inc. v. Thornton.
February 16, 2010, 12:16 amA. Cooper says:
Isn’t the oh-we’ll-just-make-it-advisory argument the same one that Zelaya tried to use in Honduras?
February 16, 2010, 12:59 amGuest12345 says:
I understand that. in fact that was my exact point. Contrary to the literal words of the 17th, a senator may be elected for less than six years. Which is why I am a bit perplexed by those who’ve repeated “It’s six years and six years only.”
February 16, 2010, 1:15 amreadery says:
I agree with Professor Volokh that voters have no authority to remove a sitting Senator by conducting a recall election. I also am inclined to agree that a state constitution could provide for an advisory recall procedure. The question is whether the New Jersey consititution could be interpreted to authorize such an election simply because the state constitution provided for a mandatory recall but a mandatory recall would violate the Federal constitution.
Professor Volokh proposes treating an advisory recall as being a subset of the elements of a mandatory recall: one does everything for a mandatory recall except without the mandate element, so the principle of severability would permit a court to reach an advisory recall simply by excising the mandate element from the state constitution and leaving everything else intact.
One difficulty with this view is that we don’t view things this way when the federal judiciary’s authority is involved. Article III authorizes mandatory opinions to decide cases and controversies. If offering an advisory opinion involved nothing more than a subset of the elements of authoring mandatory opinions, we ought to permit federal courts to offer them, since the authority to decide cases and controversies would include all the authority to offer advisory opinions, plus some extra elements to cover the mandatory part.
But we don’t interpret Article III that way. Rather, when the federal judiciary is concerned we perceive mandatory and advisory opinions as representing two distinct things standing in logical contradiction to each other, so that language permitting one is interpreted to imply the other is prohibited.
New Jersey may have state-specific interpretations and constructions on these matters. But if it doesn’t, the interpretation of Article III’s case-and-controversy requirement would seem to suggest that we shouldn’t automatically assume that authority to take an action with a mandatory effect implies any authority to act when the effect is merely advisory. It suggests that advisory opinions are distinct animals from mandatory opinions requiring distinct authorizations. Courts should not presume that permission to give one kind of opinion implies permission to give the other or even to take an act leading to the giving of the other.
February 16, 2010, 4:15 amDavid Newton says:
Surely it could also be said that a prohibition on advisory recalls would violate the first amendment. If that is the case then we would have the situation where a compulsory recall would be unconstitutional but a ban on an advisory recall would also be unconstitutional.
February 16, 2010, 5:17 ampublic_defender says:
I don’t think it’s as easy as you suggest. Precisely which words would you sever?
February 16, 2010, 5:47 amreadery says:
I agree, the rest of my post criticises this view. Thanks.
February 16, 2010, 6:08 amDYSPEPSIA GENERATION » Blog Archive » An Advisory Recall of U.S. Senators? says:
[...] Read it. [...]
February 16, 2010, 6:55 amBrett Bellmore says:
There’s the argument that you can’t recall a Senator, and there’s the brute fact that the NJ constitution authorizes the vote. Why aren’t NJ officials, under their own constitution, obligated to follow it, right up to the point where the Senator is ‘recalled’, and tells them to go screw themselves? They’re not actually violating the federal constitution until they try to enforce the outcome of the referendum, after all.
“Don’t waste our time with this constitutionally mandated procedure!” isn’t an argument I think should get so much traction.
February 16, 2010, 6:58 ampublic_defender says:
Readery, fair point. Sorry I missed it in your first post.
Because the Supremacy Clause of the US Constitution trumps the State Constitution. Something that is constitutionally mandated by a state constitution but constitutionally prohibited by the US Constitution is constitutionally prohibited. If the state law is invalid, there is nothing that requires state officials to do anything.
February 16, 2010, 8:39 amShelbyC says:
But the recall isn’t prohibited, there is just nothing in the US Constitution to give it any effect. New Jersey can recall its Senator all day long without violating the US Constitution. And we’re just speculating that the recall doesn’t have any effect. Folks why think it is Constitutional have a right to have federal courts decide whether or not they are right, and such a claim probably wouldn’t be ripe until after the recall election.
February 16, 2010, 8:57 amShelbyC says:
Sorry, should be “folks who think it is Constitutional”
February 16, 2010, 8:58 amegd says:
I don’t think that the 17th amendment is as clear as Prof. Volokh makes it out to be.
The first question is what is the relationship between a senator and his elected representatives. I think that the most accurate relationship would be that under agency law. The voters of a state appoint an individual to serve their interests in the Senate and cast votes for them. The agent isn’t free to act in his own interests (otherwise there’s no basis for anti-corruption statutes), and is assumed to act in the best interests of the state.
The next question is how the principal (the state) can control the actions of the agent? Can the state put their Senator on notice to cast a vote in a particular manner? I don’t think this is addressed by the Constitution. However, principal-agent law says that the principal does have this power. Obviously this shouldn’t be by mere polling (not a majority of the electorate), but could be done by a majority vote by the people of the state.
So, for example, if Arizona citizens wanted Senator McCain to vote “Yes” for boondoggle #381, they should be able to compel him to vote in a manner that they want.
In order to make the power to compel have authority, voters also need to have the authority to remove Senators from office. Just because there’s no provision in the Constitution for removal of senators doesn’t mean that they can’t stop serving before their term. Senators have resigned or died without creating a Constitutional crisis, so I don’t see why a state couldn’t force a Senator to cease his representation. This would merely invoke the second part of the 17th amendment, a vacancy ‘has occurred.’
February 16, 2010, 9:42 amArthur Kirkland says:
Rough research indicates that the recall committee consists of some tea partiers outraged by Sen. Menendez’ position on health care reform.
In other words, the legal and practical spirit of Dr. Orly Taitz, Esquire has emerged anew, this time from the fevered swamps of Jersey.
The likelihood that Sen. Menendez has anything to worry about resembles the likelihood that these hard-right blusterers will form a recall committee to chase David Vitter or John Ensign.
That doesn’t mean the rare legal issue is not worthy of theoretical discussion, but if the fires are being stoked by hopes that Sen. Menendez is in jeopardy, the time would probably be better spent scouring Iraq for those WMDs that will vindicate Dick Cheney and his fellow warmongerers.
Side note: Anyone notice that Dr. Orly Taitz, Esquire has told the court considering the sanctions order that her defense requires
February 16, 2010, 10:16 ameven more cowbellissuance of an order requiring the President of the United States to provide an original birth certificate?Mark Field says:
The power to instruct was considered and rejected in the Convention and subsequent ratification debates.
February 16, 2010, 10:19 ammikeyes says:
If the state constitution in question makes disagreeing with a recall a death penalty offense then they can skirt the question of actually recalling him or her but still remove that person without defying the US Constitution.
Problem solved.
February 16, 2010, 10:33 amShelbyC says:
Agreed. Not sure what side of the fence I’m on, but the 17th sets the term at 6 years and doesn’t specify a means that that a seat can become vacant, but also contemplates that a seat can be vacant. Clearly death or resignation would render it vacant, but how about disability? And who decides if a senator is unable to discharge the duties of his office? It’s not obvious to me that only death or resignation create a vacancy.
February 16, 2010, 11:05 amBored Lawyer says:
That begs the question. The citizens authorized a true recall. As it turns out, at least as to federal represetatives (Senators and Congressmen), that cannot happen Constitutionally. The most that can happen is an advisory recall — which has no legal effect. It is not at all clear that that was ever authorized by anyone.
February 16, 2010, 11:09 amBrett Bellmore says:
But, Public Defender, let’s look at an analogous situation:
McCain/Feingold has been largely struck down as unconstitutional. This has Democrats really pissed off. Suppose they decided to reenact the law, with no changes at all, as a rebuke to the Supreme court.
Would I get anywhere in court arguing that it was unconstitutional for them to even hold the vote? I think not. I doubt I could get an injunction against the President signing it, either. But enforcement? That’s quite another matter.
The supremacy clause might make it unconstitutional to recall a Senator. It surely can’t make it unconstitutional to hold a vote to recall a Senator. Only enforcement of the vote actually violates the federal constitution.
In this case, we’ve got state officials using the supremacy clause as an excuse to refuse to follow their state constitution. I think we should have little tolerance for state officials refusing to follow their own constitutions, even when they claim to have good reasons. It’s not like they have much tolerance for citizens refusing to follow the laws THEY make, after all.
February 16, 2010, 11:15 amShelbyC says:
And we’re assuming it violates the Constitution, which, AFAIK is tbd. Surely the state officials bound by the state Constituion don’t get to make that call, do they?
February 16, 2010, 11:28 ammls says:
egd- I don’t think Professor Volokh claimed that the issue was that clear. However, if you look at the practice and precedents described in the CRS memo, you can see that the argument against any kind of implied recall authority in the Constitution is pretty strong. The question may not be “settled,” in the sense that one could make a good faith argument on the other side, but it would be, IMHO, a weak argument.
Even if it were a close question, the doctrine of constitutional avoidance would dictate that the NJ statute not be interpreted to apply to federal officials if it is ambiguous. Given that it is best uncertain whether a state may recall a Member of Congress, one should expect a clear statement from NJ if it intended to authorize such an action. Since it sounds like the statute is not clear on this point, I would expect that the case will be resolved on that ground.
OTOH, if the NJ law clearly applied to federal legislators, I don’t think it is so obvious whether the recall should be blocked, either by a state official or a court. One could argue that if the voters of NJ want an opportunity to recall their Senator, they should be entitled to make their case in the forum authorized by the Constitution to make that decision, namely the Senate which is the judge of the election, qualifications and returns of its Members. This seems to me to be a plausible argument, though I can see the other side of the issue as well.
It also seems to me that the relevant Senate power here is that of judging elections and qualifications, not that of expelling its Members. The question before the Senate would be whether the Senator is in fact still a Member of the body after having been recalled, not whether he ought to be expelled as a consequence of having been recalled. I suppose that the Senate could decide, by a two-thirds vote, to expel a Senator because he had been recalled, but then the Senator would have lost his seat as a result of the expulsion, not as the (direct) result of the recall.
With respect to advisory recalls, I don’t see a strong constitutional objection, although the wisdom may be questionable. Advisory instructions would seem to be constitutional and to make sense in some situations. I also don’t see that they would be inconsistent with the Senate’s “cooling-off” function, any more than they were when state legislatures issued them.
February 16, 2010, 11:46 amShelbyC says:
FYI, it’s a Constitutional amendment Art I, 2b that applies explicitly to folks representing the state in the US Congress.
February 16, 2010, 11:55 ammls says:
ShelbyC- thanks. The impression I got from the article was that the recall opponents were arguing the law didn’t apply to federal legislators. Doesn’t seem like much of an argument in light of the provision you cite.
February 16, 2010, 12:02 pmOren says:
Congress is a coequal branch of government to the Fed Courts.
The States are inferior in authority to the Fed Courts*.
What Congress can do to thumb their noses at the Federal Government need not be tolerated when it comes from the States.
* Only in such areas in which the FCs are explicitly granted jurisdiction. In this case, I don’t think anyone will dispute that the procedure for electing and removing Senators falls under Article III. If this were a State matter (for instance, a matter of interpreting the State Constitution for the purposes of a non-Federal office), the Federal Courts would have no authority to intervene at all.
February 16, 2010, 12:06 pmOren says:
The NJ Constitution cannot change the terms of the 17A to the US Constitution. Nor do I think that you claim as much.
I think the core of your (and Brett’s) argument (correct me if I’m wrong) is that a referendum for an unlawful end is not, itself, unlawful. That seems incorrect to me as a matter of basic principle — one cannot have a legitimate referendum on a fundamentally illegitimate question any more than one can have an ineligible candidate on a ballot.
Suppose a New Jersey resident not having attained the age of 25 wins the Democratic primary in NJ and wants to run in the election for the House. Assume further that the NJ government (all 3 branches) have no problem with this. Must the Federal Courts allow this to happen, despite the fact the candidate simply cannot be a congressman? IMO, the fact that he cannot be a congressman absolutely implies that he cannot be a candidate for the seat in Congress.
February 16, 2010, 12:15 pmShelbyC says:
Well, so far the federal courts havn’t done anything, and I doubt they would until NJ actually had a recall election. The secretary of state is refusing to hold the election based on her own determination that the recall would be unconstitutional. This strikes me as problematic, although upon further reading the NJ constitution says:
I don’t know what that means, but it could mean that it’s OK for the Secretary of State to make her own determination of the issue.
February 16, 2010, 12:22 pmfwb says:
Does the Constitution prohibit recall? No. Then under the tenth, the power to recall is retained by the state or by the People.
There is no argument except in the tiny brains of those who cannot grap the simplicity of the Constitution. The Constitution is NOT RULES FOR US. The Constitution is OUR RULES FOR THEM, the government.
Tiocfaidh ar la!
February 16, 2010, 12:42 pmegd says:
I think in that case you would have judges take the position that the determination of whether the candidate is eligible for office was made by the primary voters, and will be made by the electorate at large. Alternatively, the court may take the position that no one has standing to challenge his eligibility.
But the problem with your hypothetical is that such an amendment would be a direct contradiction to the Constitution. I don’t think this is the case here. The Constitution provides how to elect a Senator and how to fill a vacant seat. It is silent on how that seat is vacated.
Or the state could take mikeyes’ position. If you lose a vote, resign or lose your head (or go to prison, a slightly less drastic approach).
February 16, 2010, 12:46 pmBrett Bellmore says:
Back in Michigan, this sort of language has, IIRC, been interpreted to mean precisely the opposite: That you can recall somebody for any reason whatsoever, it’s up to the voters in the recall election whether the reason cited is valid.
February 16, 2010, 12:53 pmADF Alliance Alert » NJ: An Advisory Recall of U.S. Senators? says:
[...] Volokh writes at the Volokh Conspiracy: “There’s a move afoot to recall Senator Robert Menendez (D-NJ). New Jersey law authorizes [...]
February 16, 2010, 2:40 pmOren says:
I think it’s well settled law that the recall would be unconstitutional.
That is, an agent of the State Constitution must not close her ears and stop her eyes to the obvious Federal issue.
February 16, 2010, 4:02 pmOren says:
It provides that 2/3rds of the relevant House can eject the member — inclusio unius est exclusio alterius.
February 16, 2010, 4:03 pmEric says:
I went back to look at the constitution, Article 1 section 3 and the 17th amendment are both silent on the issue of recall. So, once again I point out the 10th amendment:
“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.”
Sounds simple to me.
February 16, 2010, 4:29 pmShelbyC says:
Of course, that reasoning would exclude death and resignation. And I still don’t know what happens in case of disability — can a state make provisions to replace a senator who is unable to discharge his duties?
February 16, 2010, 4:42 pmShelbyC says:
Can anything be considered “well settled law” if there’s not a direct precedent?
February 16, 2010, 4:43 pmA. Cooper says:
Resignation, perhaps. (Not death; death isn’t an institutional method for removing officers). But resignation has precedential support going back–well, as far as people have refused to serve. At the very least, it’s part of the common law. The same is definitely not true of recall.
February 16, 2010, 5:07 pmPubliusFL says:
And if a senator is clearly incapacitated but is unable to (or refuses to) resign, you then go back to the power of 2/3 of the body to expel one of its members. In practice, though, senators have gone incapacitated for years while refusing to resign.
February 16, 2010, 5:24 pmOren says:
Yes, those things that are necessarily implied by other precedents.
February 16, 2010, 5:59 pmmarkm says:
As Oren says, the Senate certainly could expel a member; whether many of the remaining slim Democratic majority would vote to reduce their number still further is another question. The House has expelled members; for instance, look up Adam Clayton Powell, Jr., who was either too corrupt or too dark-skinned for his Congressional colleagues. However, when his district elected him again, the courts finally ruled that the House’s authority over its membership did not extend so far as to keep him out.
February 16, 2010, 8:38 pmohwilleke says:
The signatures weren’t collected with the representation that it was non-binding and the petition offered presumably doesn’t say it is non-binding. The issue is whether the chief election official of New Jersey has abused his discretion by determining that the process and the ballot issue to be proposed to voters is tainted with the misrepresentation that it purports to be binding.
Also, in New Jersey, I suspect that citizens do not have a general power to propose initiatives as they do in Colorado and California, for example. Thus, were the New Jersey Secretary of State to blue pencil the proposal by adding a disclaimer that the proposal was advisory only, he would be allowing the people of New Jersey to offer up a ballot initiative that they would otherwise not have had the power to bring in the first place.
In Colorado or California, it is entirely legitimate to bring a ballot proposal that says “We, the People of the State hereby ask John Doe to resign, recognizing that this request is merely advisory in nature,” or for that matter, a ballot proposal that says, “We, the People of the State hereby declare that we do not like Green Eggs and Ham.” In New Jersey, I suspect that there are only a handful of very specific instances in which a ballot issue can be proposed by petition, rather than via legislative referral, and that advisory opinions of the People are not encompassed in that list.
February 16, 2010, 9:59 pmohwilleke says:
Interestingly, not every state applies the Alaska rule. In Colorado, for example, one litigates the validity of the petition process, the accuracy of the ballot title and the existence of multiple subject (forbidden) before the issue is voted upon, but one litigates the constitutionality of the initiative (i.e. the legality of its objective) only after the voters have spoken. North Dakota, similarly litigates substantive constitutionality after a measure passes, and I believe (based upon the litigation over Prop 8) that the same rule applies in California.
The rule in Alaska is probably a minority rule, unique to the ballot initiative provisions of the state constitution and state law (a sensible one, by the way, by my lights). At least some states historically (IIRC including New York State), and quite a few foreign legislative bodies internationally, have provided for pre-effective date review of the constitutionality of legislation as a matter of course.
February 16, 2010, 10:08 pmPubliusFL says:
The issue in the Powell case is that the House did not expel him, but rather tried to exclude him from ever taking his seat in the 90th Congress. Although he was excluded by better than a 2/3 majority, SCOTUS said it would not assume that the result would have been the same had the vote been framed as a vote to expel a duly seated representative.
February 17, 2010, 8:41 amShelbyC says:
Of course, the state whose Senator is incapacitated shouldn’t be dependent on 2/3′s of the Senate to get their representation.
February 17, 2010, 12:29 pmRich Rostrom says:
Publius: In practice, though, senators have gone incapacitated for years while refusing to resign.
Senator Charles Sumner (R-MA) was left disabled by the brutal attack of Representative Preston Brooks (D-SC) in May 1856. He was unable to attend the Senate for over three years. However, not only did he not resign, he was re-elected by Massachusetts in November 1856. He returned to the Senate in 1859, and served until his death in March 1874.
On the general topic of recalling Senators: the obvious reason not to recognize such a power is that it renders any election of a Senator provisional.
Who should have the power to recall? Before the 17th Amendment, it would be the legislature, which elected Senators; but then any change in control of the legislature would mean replacement of the Senator. Who could recall an appointed Senator? The Governor? Then an appointed Senator would be serving at the Governor’s pleasure – not what was intended. If the legislature – then the legislature has de facto approval power over appointments by the Governor, again without that being intended.
Suppose the power to be exercised by the people through a recall vote. That would make popular election provisional, by giving the people the right to “de-elect” at will. Who would want that?
February 17, 2010, 3:05 pmAdam says:
If a people, who retain all un-enumerated rights unlike the Feds can’t recall their own senator because the amendment says six years, then following that logic a senator has no right to resign, because the amendment says they must serve for six years. Just because it doesn’t specify anything outside of the time limit doesn’t mean that people give up their right to choose a representative for a set time.
February 18, 2010, 9:48 amPubliusFL says:
Well, the 17th Amendment was adopted after the 13th Amendment. ;)
February 18, 2010, 11:22 amThe Volokh Conspiracy » Blog Archive » New Jersey Appellate Court Allows Continued Signature Gathering for Recall of U.S. Senator Robert Menendez says:
[...] uncertain whether the recall would be constitutional. (My view is that a mandatory recall would clearly be unconstitutional, since the Constitution expressly states that Senators serve for six years; and while I suggested [...]
March 16, 2010, 5:55 pmjoe says:
The 17th amendment is unconstitutional. There should be no manipulated voting for senators.
March 28, 2010, 9:44 pm