Here’s the opinion. To my surprise, the court concluded that it’s 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 have suggested that an advisory recall might be fine — though it probably wouldn’t be a sound application of this particular New Jersey statute — the court didn’t adopt that approach.)
I’m on the run right now, so I can’t talk further for a while, but here’s the court’s summary of its conclusion:
To summarize, we neither declare the recall provision in our State Constitution as applied to a United States Senator definitively valid or invalid. There is, and there will be, no necessity for our courts to resolve this difficult constitutional issue if the Committee’s petition drive fails to collect the necessary, approximately, 1,300,000 signatures. Pending that possible eventuality, we see no urgent reason to now decide the question of invalidity or validity with finality. All we need to decide, as we have done, is whether there is a sufficient basis for the Committee to proceed with its initiative and for the Secretary of State to perform her ministerial function [i.e., accepting the petition, which would allow signature gathering to proceed -EV]. To go beyond that limited holding and “embrace unnecessary constitutional questions” would depart from the “older, wiser counsel” of judicial restraint.
So the recall may yet be found unconstitutional, after the signatures are gathered. But until then, the recall will be going, and will presumably be a continuing news event in New Jersey — not something that Senator Menendez is likely to find pleasant, I think. More later, I hope.
Steve says:
The court probably figured it could duck the question because there is no chance that 1.3 million signatures will be collected. Lazy, but that’s the real world for you.
I am not sure why Prof. Volokh believes the signature-gathering effort will be any more newsworthy than any other petition drive, but I somehow doubt the nightly news will regularly feature breathless updates of how many signatures were collected today.
I just hope there will not be too much state money wasted on this fruitless exercise.
March 16, 2010, 5:59 pmHerb Spencer says:
Why not constitutional under a 10th Amdt. argument that, while the Constitution states the method for electing and appointing senators, its silence on removing them, unless they are deemed “civil Officers of the U.S.” subject to impeachment under Art. II, Sec. 4, reserves that mechanism “to the states respectively, or to the people[?]“
March 16, 2010, 6:08 pmWaste93 says:
I’m not sure it would be unconstitutional. As the Constitution is silent on the issue you could argue the 10th Ammendment reserves it to the state or the people
Also States already have requirements to run for Congress. They have residency requirements, signature requirements to get on the ballot, etc. The US Constitution doesn’t mention those either so are those also unconstitutional?
March 16, 2010, 6:19 pmSteve says:
Also States already have requirements to run for Congress. They have residency requirements, signature requirements to get on the ballot, etc. The US Constitution doesn’t mention those either so are those also unconstitutional?
The Constitution does indeed mention that Senators and Representatives must be inhabitants of the state they represent. Additional residency requirements (like requiring that a Congressman live in his district) have been held unconstitutional.
The Constitution also gives states the power to regulate the time, place, and manner of federal elections, which is why signature requirements and the like are permitted. An onerous requirement that goes beyond “time, place, and manner” would be unconstitutional, though.
March 16, 2010, 6:32 pmepluribus says:
Recall drives are common in states and municipalities. They are often no more than efforts to harass or frighten office-holders, and they are often quite unsuccessful. It is common in many states (California comes to mind) for courts to avoid ruling on the constitutionality of initiatives until the imitiative process has run its courts. This is a common sense use of judicial restraint, and would seem to apply to this kind of recall effort as well. It would be interesting to know who is financing this effort to recall Menendez. It’s got to cost big bucks. Do I smell some big Republican money?
March 16, 2010, 6:34 pmInstapundit » Blog Archive » BIG NEWS FROM NEW JERSEY: New Jersey Appellate Court Allows Continued Signature Gathering for Recal… says:
[...] BIG NEWS FROM NEW JERSEY: New Jersey Appellate Court Allows Continued Signature Gathering for Recall of U.S. Senator Robert Me… [...]
March 16, 2010, 6:35 pmepluribus says:
In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) the Supreme Court ruled that states cannot impose term limits on US representatives or senators. If they cannot impose term limits on senators, how can they recall them?
March 16, 2010, 6:40 pmSteve says:
If they cannot impose term limits on senators, how can they recall them?
I think a better analogy is that if states aren’t allowed to hold Senate elections more often than every six years, they can’t hold recall elections in the middle of a term either.
March 16, 2010, 6:47 pmBrett Bellmore says:
Every step of the process is constitutional, short of the last step, of actually enforcing the removal of the Senator from office.
It’s constitutional for states to hold all the extra Senate elections they want, too. They just don’t put anybody in the Senate.
March 16, 2010, 6:53 pmWaste93 says:
Don’t be so sure. Mass just held an election outside of that six year window to fill a vacancy. States routinely set special elections to fill vacancies for deaths. They also set when they will be held. Can they also hold them if the Senator is inprisoned? If the Senate rejected an elected Senator would the state then be able to hold another election to fill it?
March 16, 2010, 7:01 pmSteve says:
It’s constitutional for states to hold all the extra Senate elections they want, too. They just don’t put anybody in the Senate.
I guess you must have seen Alice in Wonderland over the weekend or something. To normal people, it’s not a Senate election unless someone is actually getting elected to the Senate. But sure, there’s nothing unconstitutional about a state holding a phony election and pretending that it’s a Senate election.
No one is arguing that the preliminary steps such as gathering signatures are unconstitutional, though. The Secretary of State is simply arguing that it doesn’t have to waste its time accepting the notice of intention to recall when there can’t possibly be a recall under the Constitution.
March 16, 2010, 7:02 pmepluribus says:
Steve says:
If they cannot impose term limits on senators, how can they recall them?
Do you have the citation on that case?
March 16, 2010, 7:03 pmBrett Bellmore says:
Yes, and, IIRC, the Secretary of State is arguing this in the teeth of state constitutional language explicitly authorizing the recall. Which to my mind strips his argument of any weight; He’s obligated to comply with his own constitution right up to the point where it actually conflicts with the federal constitution. The fact that the latter might make earlier steps futile doesn’t strip the state constitutional language of it’s force of law.
March 16, 2010, 7:05 pmShelbyC says:
As a curious nonlawyer, how come the remedy is an injuction and not a writ of mandamus?
March 16, 2010, 7:10 pmSteve says:
Mass just held an election outside of that six year window to fill a vacancy. States routinely set special elections to fill vacancies for deaths. They also set when they will be held. Can they also hold them if the Senator is inprisoned? If the Senate rejected an elected Senator would the state then be able to hold another election to fill it?
Special elections to fill vacancies are specifically authorized by the Constitution, so it’s not like you’ve unearthed any great mystery here. If a Senator is expelled or rejected by the Senate, the seat is vacant, so it can be filled by a special election or otherwise according to State law. If a Senator is imprisoned or otherwise incapacitated, the seat is not vacant, so a replacement cannot be appointed unless the Senate expels the current occupant first.
If you think the fact that special elections are held to fill vacancies means that a state could pass a law saying “from now on, we’re going to elect a Senator every three years rather than every six,” I’m pretty sure you’re mistaken about that.
March 16, 2010, 7:11 pmSteve says:
He’s obligated to comply with his own constitution right up to the point where it actually conflicts with the federal constitution. The fact that the latter might make earlier steps futile doesn’t strip the state constitutional language of it’s force of law.
Well, that’s a creative theory. It’s pretty much rejected in this opinion, though.
March 16, 2010, 7:13 pmArthur Kirkland says:
Those who object to Vitter and Ensign have far greater cause to seek removal, yet it is Menendez’ opponents who get sufficiently lathered up to devote time and effort to a million-signature campaign that is likely to be pointless even if the required signatures are collected.
Those opposing Menendez seem unhinged, at least when compared with residents of Louisiana and Nevada.
March 16, 2010, 7:23 pmUrsus says:
Re: six-year term, does the constitution allow senators to die? Surely there is an implicit “unless unable” in there somewhere, and the implicit clause would include removal by a variety of means ranging from death to recall.
March 16, 2010, 7:26 pmStan25 says:
That is why the 17th Amendment must be repealed. Go back to where the Senators served at the pleasure of the State legislators. This way, the Senator could be recalled by the state legislature and not by the average citizen. Although in the end, the people are actually doing the recalling when they vote for their state legislators.
March 16, 2010, 7:29 pmEvan says:
That sounds like a good idea, but it’s never been done before. Before the Seventeenth Amendment, the state legislatures chose senators for a fixed six-year term.
March 16, 2010, 7:35 pmSteve says:
Surely there is an implicit “unless unable” in there somewhere, and the implicit clause would include removal by a variety of means ranging from death to recall.
The Seventeenth Amendment provides that States may fill vacancies. If you can read that provision to imply that a State may freely create vacancies and then fill them, you are well on your way to thinking like a lawyer, albeit not necessarily a winning one.
March 16, 2010, 7:37 pmRepeal 16-17 says:
March 16, 2010, 7:43 pmepluribus says:
Nonsense. The 17th amendment did not change this. Senators did not sit at the pleasure of the state legislatures. From the beginning, they were chosen “for six years.” Art I, Sec. 3, cl. 1.
March 16, 2010, 7:44 pmepluribus says:
So “personal honor” trumped the clear language of the Constitution? Is it your claim that this was “original intent”? Or just “original nonsense”?
March 16, 2010, 7:48 pmEugene Volokh says:
Stan25: There never was a time when, by law, the Senators served at the pleasure of the state legislators. I believe there was a practice of Senators’ resigning when asked to do that by the state legislators, but that did not have the force of law, for much the same reasons that recalls are unconstitutional under the Seventeenth Amendment — article I, section 3 says, “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years.” No-one, not the legislator nor anyone else, can reduce the Senator’s term to something less than six years (setting aside special cases provided for by the Constitution, such as vacancies created by resignation or death).
March 16, 2010, 7:55 pmConstantin says:
Maybe the NJ Supreme Court will just deem that the guy has served his six years. That’s all the rage these days.
March 16, 2010, 7:55 pmepluribus says:
So cute–almost. The rules of the US Senate have permitted matters to be “deemed” passed tens of thousands of times over the history of the US. It’s most often done by unanimous consent. Now all of a sudden opponents of healthcare reform are pretending that it’s something new. Yes, the insurance companies don’t like it. No, it’s not something new, Mitch (“We will do everything in our power to prevent this from beconing law”) McConnell to the contrary notwithstanding.
March 16, 2010, 8:09 pmRepeal 16-17 says:
It was a practice in the Senate before the Civil War. It was not required by the Constitution. It was a reason for a Senator to resign back then.
March 16, 2010, 8:12 pmepluribus says:
I won’t say you are wrong. I would, however, be more persuaded if you provided some evidence of this other than your assertion. And what makes a “practice”? Did this happen once? Twice? A hundred times? Do you have any idea?
March 16, 2010, 8:30 pmHerb Spencer says:
EV, you start off well enough, but then make two unsupported assertions: the unconsitutionality of recalls under the XVII and the broad Diktat against recall. Is there case authority for the former, and is there any authority for the latter? To repeat my original question: why wouldn’t recalls be constitutional under the X, assuming senators are not “civil Officers of the U.S.” subject to impeachment under Art. II, Sec. 4?
March 16, 2010, 8:30 pmEugene Volokh says:
Herb Spencer: I elaborate on this further in a new post, but I think my assertion has been supported all along — under the clear text of the Constitution.
Epluribus: I don’t think it advances the ball much to call people’s arguments “nonsense,” especially since (as Repeal16-17′s later comment points out) they are actually quite sensible and at the very least eminently plausible.
March 16, 2010, 8:33 pmBrett Bellmore says:
Yup, really creative theory, that state officers are obligated to obey state constitutions, in so far as they don’t conflict with the federal constitution. Just pulled that idea out of my nether orifice.
March 16, 2010, 8:42 pmPyrrho says:
Why are so many people arguing that the Constitution is “silent” on the question? It seems quite explicit to me.
March 16, 2010, 8:45 pmCase Law says:
The Constitution also gives states the power to regulate the time, place, and manner of federal elections, which is why signature requirements and the like are permitted. An onerous requirement that goes beyond “time, place, and manner” would be unconstitutional, though.
Under this reasoning will states be prevented from imposing birth certificate requirements on presidential candidates (currently under consideration in Oklahoma, Tennessee, and Arizona)?
March 16, 2010, 8:48 pmepluribus says:
EV, I respect the civility of this site. If “nonsense” is deemed uncivil (I wasn’t aware that it was), I won’t use it again.
March 16, 2010, 9:00 pmHal Duston says:
epluribus:
EV didn’t deem the term “nonsense” uncivil. He deemed it unpersuasive.
March 16, 2010, 9:06 pmRepeal 16-17 says:
Here’s an example of instructions –>
http://www.constitution.org/rf/vr_06.htmHere’s the history of Senatorial instruction –>
March 16, 2010, 9:18 pmhttp://www.senate.gov/artandhistory/history/minute/Constituent_Complaints.htmIbnabdulrahman says:
Why the surprise that notions of honor trumped other considerations in the 19th-century? No one has argued that senators served at the pleasure of state legislatures, much less that conduct motivated by questions of honor could serve as any kind of precedent. That genteel sneer I think I detect would have itself have been incomprehensible not long ago, and even today is unevenly distributed. I can’t decide what’s a worse commentary on the sensibility of the lawyering castes: the dubiety quotes or the clinical incredulity.
March 16, 2010, 9:42 pmPTL says:
I think this a nice intellectual exercise. I also think it is meant to exercise political pressure on a politician who is generally disliked
March 16, 2010, 10:06 pmby some of his constituents.
cubanbob says:
How is a recall different from any other vacancy? A senate term is not necessarily the same thing as a specific senator. There is a specific term but like any other vacancy the term can be filled for the balance of that term so why would a recall creating a vacancy that can filled by a special election or appointment by a governor any different from a death of the senator or their resignation?
March 16, 2010, 10:50 pmepluribus says:
I must have missed that. Where did he say “unpersuasive”?
March 16, 2010, 11:19 pmBob Smith - Fort Worth says:
Epluribus, that’s all fine and good for the Senate, but if I’m following the news accounts accurately, it’s the House of Representatives that’s threatening to “deem” the legislation has been passed. As a non-lawyer, isn’t there a constitutional requirement that the House actually cast votes on the Senate’s bill?
March 16, 2010, 11:32 pmarbitrary aardvark says:
It would take some clever drafting, but Jersey could enact the death penalty for something menendez is likely to do next week. Constantin got there ahead of me; he could be deemed executed, or pardoned conditional on resignation. I don’t know this menendez fellow. Is the sort who, like Nixon, would resign, or like Clinton who would run again after being impeached and shamed, and then run his wife?
March 16, 2010, 11:32 pmThere would be a slew of due process bill of attainder ex post facto and other problems to overcome, but they could hire a philadephia lawyer to draft it. Perhaps he could be deemed no longer a resident of Jersey, although the constitution frowns on exile.
markm says:
epluribus: Wrong House. More importantly, don’t you think there’s a little difference between taking a shortcut on a trivial question by unaminous consent, and similarly bypassing the rules on a momentous and controversial issue, when the House leadership is having trouble even scraping up 50% + 1 votes?
March 17, 2010, 6:59 amBrett Bellmore says:
Ah, if only the Senate DID reserve ‘unanimous’ votes for trivial matters. The ’95 budget standoff was ended by a ‘unanimous’ vote, the rule prohibiting filibuster of the Brady bill adopted that way, too. In both cases with a bare handful of members present. But the illegitimacy of so many Senate uses of the procedure hardly saves the House in this instance.
I guess the next obstacle is that budget ‘reconciliation’, being a budget balancing procedure, requires that the reconciliation bill be cheaper than the original. And that’s not likely to be the case here. But I suppose they could ‘deem’ it to be cheaper.
March 17, 2010, 7:39 amShelbyC says:
He used the metaphore “advancing the ball.” I could be wrong, but it seems clear that in the context of puting forth an argument, “the ball” refers to persuasion, not civility, no?
March 17, 2010, 9:50 amepluribus says:
You may be right. I’m interested in this because I don’t want to violate the rules. Is it the rule that I must be “persuasive” or that I must be “civil”? I try to be both, but obviously not always successfully.
March 17, 2010, 10:21 amDoc Merlin says:
If there is unanimous consent, I don’t see the problem, its the same as actually passing a vote unanimously. If there are any objections it should really get a vote.
March 17, 2010, 11:09 amepluribus says:
No one has suggested there won’t really be a vote. The question is what they will vote on.
March 17, 2010, 11:36 amgullyborg says:
Hypothetical:
Suppose a state, by whatever mechanism (statute, petition, whatever), passes something stating that a sitting U.S. Senator is declared legally dead.
Whether the Senator is, in fact, dead or alive, can the state then initiate whatever state laws go into effect to fill the vacancy caused by the Senator’s “death”? Would the Senate be compelled to accept the results? What is the remedy for the sitting Senator to prove he is, in fact, not dead?
It sounds preposterous. But consider how difficult it can be in real life when a record keeping error results in a living person appearing “dead” to, oh, Social Security or other agencies that stop giving benefits upon death. A fat lot of good it does to waive your arms in front of the TV news camera saying “look at me, I’m alive!” when you are losing your home because you haven’t been able to get your pension check for six months.
March 18, 2010, 7:15 pmgerry says:
Hello,
March 24, 2010, 2:36 amI am not sure why Prof. Volokh believes the signature-gathering effort will be any more newsworthy than any other petition drive, but I somehow doubt the nightly news will regularly feature breathless updates of how many signatures were collected today.
it’s really good post