[Josh Chafetz, guest-blogging, July 21, 2008 at 7:44am] Trackbacks
Thanks to Eugene and His Co-Conspirators

for inviting me to blog here about my new paper, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, which will be published this November in the Duke Law Journal. (If you missed Eugene's welcome post and are wondering who the heck I am, my faculty webpage is here.) I thought what I would do this week is say a little bit about each section of the paper, and also try and respond to some comments from you all. The paper has a fair amount of historical detail, of which I'll only be able to give small snippets here, so if the issues seem interesting to you, I urge you to read it.

The three-sentence version of this article as a whole is that it considers the question of whether Members of the House of Representatives have a constitutional right to resign their seats, or whether the House itself has the constitutional power to require that resignations must be accepted by the House before they become effective. The article makes an historical argument that the House does have the constitutional power to require that resignations be accepted, but this power has never been exercised. Finally, it suggests some reasons why we might want the House to change its rules so as to require it to accept resignations before they become effective.

I'll lay out the historical arguments over the course of my next few posts. But I'll just close this introductory post with a brief bit of shameless self-promotion: if you're interested in issues, like this one, of the interaction between the Constitution and congressional procedure, I note that my book, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions, covers a number of these issues in depth. (And it's currently 20% off at Amazon! Buy copies for your friends and neighbors!)

Sean M.:
Welcome, Josh!

Looking forward to what you have to say; Prof. Volokh always brings on excellent guest bloggers.
7.21.2008 9:58am
Chris Bell (mail) (www):
Also looking forward to it.

Are you just saying that Congress can choose not to accept the resignation? I guess Congress can't force the Reps to continue to "serve". (Not that half of them do any "serving" anyway.)

Ack! Guess I'll have to read the paper
7.21.2008 10:44am
DCTenor1:
This sounds fascinating. I have also wondered about the constitutionality of members of Congress switching their party affiliations after voters have already elected them in. When Jeffords left the Republican party several years ago, they lost their majority and all the committees switched hands! Thought that kind of thing would have been a fascinating law review article but I never got around to writing it. Maybe you can take it on? ;)
7.21.2008 11:16am
Dave N (mail):
DCTenor,

I am interesting why you think a member changing party affiliation has any Constitutional implication at all, since parties were not mentioned in the Constitution.

I would also note that the paper has to do with the House of Represenatives, and James Jeffords switched parties as a United States Senator.
7.21.2008 11:33am
Richard Riley (mail):
Agree this is very interesting and I look forward to Prof. Chafetz's posts.

One sometimes sees in corporate bylaws (and perhaps even in some corporation statutes) a provision along the lines of "A director may resign by submitting a resignation to the Chairman, and such resignation shall be effective upon submission regardless of its acceptance by the Directors" or some such.

I have always wondered why such language has ever been thought necessary, since my working assumption would be that if someone says he's leaving an office, he's gone. Looks like Prof. Chafetz may prove me wrong! Maybe his posts will move a little afield from the House of Representatives and explain corporation law provisions like this, and whether they are related to his topic.
7.21.2008 12:45pm
CJColucci:
Having read the piece, i can't say that I find anything to disagree with, but I'm put in the mind of the grade-schooler doing a book report on a book about zebras: "This book told me more Than I wanted to know about zebras."
7.21.2008 1:41pm
Rich Rostrom (mail):
An interesting issue. I can think of several reasons the House might refuse to accept a resignation.

For instance, a minority member is incapable of serving, the majority might refuse to accept resignation, so that the seat will not be filled by someone capable.

Another reason might be that the opposing party hopes to gain that seat - but thinks their chances would be better at the next general election, or a later special election. If the would-be resigner is discredited by scandal, keeping him in office prevents his misdeeds from being buried.

But these are all rare, and affect only the minority.
7.22.2008 8:43pm