The Volokh Conspiracy

or, Part IV of Leaving the House. Having thus far argued that no right to resign from the legislature existed in British law or (with the exception of Maryland) in the pre-constitutional American legislatures, and having argued that, against this background, the decision to include a mention of resignation in the Senate Vacancies Clause but not in the House Vacancies Clause was intentional and meaningful, we now come to the question of how the House has actually treated resignation.

The answer, in a nutshell, is that it has always allowed them. There were no resignations from the House in the First Congress. However, in the Second Congress, William Pinkney was elected to the House from Maryland. He never took his seat, and in September 1791, he sent a letter to the Governor seeking to resign his seat. The Governor issued a writ for a new election, which was won by John Francis Mercer. When Mercer appeared to take his seat, the issue of who, if anyone, was entitled to the seat was put before the House Committee of Elections.

The Committee recommended that Mercer be seated, but substantial debate ensued on the House floor. There were, essentially, three positions represented. One was that, because Pinkney had never been seated, this was a refusal rather than a vacancy, and the two were treated differently. On this view, Mercer should be seated because Pinkney had never taken the oath. The second view was that this was a resignation (or that resignations and refusals were to be treated the same), and that resignations were perfectly fine. The third view was that Pinkney could not give up his seat without the House's consent. Ultimately, the House seated Mercer, but without choosing between the first two positions.

Later in the Second Congress, Joshua Seney, a Member from Maryland, sought to resign his seat. The Annals make clear that there was a debate over the constitutional issues surrounding a resignation, but unfortunately, the Annals contains only a very truncated summary of the debate. Without any resolution by the House, the Maryland Governor ordered a new election, and William Hindman was returned. When he appeared, he was seated.

Thereafter, the matter was more or less settled. In the first resignation from the Third Congress, John Francis Mercer (the same one who replaced Pinkney) resigned his seat and was replaced by Gabriel Duvall. The debate on this seems almost non-existent, but it is worth noting that, while some Members wanted to seat Duvall without voting on the Committee of Elections’ report, James Madison insisted that the report be voted on, perhaps indicating that Madison continued to believe that a resignation was not effective until the House voted to accept it. In the second resignation from the Third Congress, Uriah Forrest, a Representative from Maryland, resigned and was replaced by Benjamin Edwards. This appears to have occasioned no debate at all, but the House did vote to seat Edwards.

What was going on here? Well, first, it is worth noting what the votes to seat the replacement members do not tell us. Clearly, from the debate over Pinkney, some Members thought that there was a right to resign a House seat. But some may have felt, as Madison apparently did, that it was, in fact, necessary for the House to vote to accept resignations. Note that all of the replacements mentioned above were seated only after a vote of the House. Thus, the fact of their seating likely reflected a coalition of (a) Members who believed that the replacements were entitled to the seat because their predecessors had been entitled to resign, and (b) Members who believed that the resignation of the predecessors was a matter of grace, but that they were voting to extend that grace.

Moreover, it may not have escaped notice that the first four resignations from the House were all members from Maryland, the only state whose pre-1787 Constitution allowed for legislative resignation. The norm that resignation was a matter of right may have been introduced into Congress by Marylanders and subsequently spread to their colleagues. Consider, in this vein, that Pinkney's letter announcing his resignation read, "I enclose my resignation, which you will be please [sic] to forward to the executive ...." Contrast that with a roughly contemporaneous letter by Christopher Gore, a member of the Massachusetts state legislature, "ask[ing] leave of the Hon. House" to give up his seat.

Consider also a 1795 exchange of letters between De Witt Clinton, writing on behalf of his uncle George Clinton, the Governor of New York, and the New York congressional delegation. Silas Talbot, a Representative from New York, sought to resign his House seat by letter to the Governor. Clinton replied, in a letter addressed to the entire delegation, that only the House itself, and not the Governor, was competent to declare Talbot's seat vacant. The delegation replied that "whatever doubt might have been entertained on this point at the commencement of the government, the question has been since settled in practice .... [W]e beg leave to refer your Excellency to the printed Journals of the house of Representatives ...." In other words, they pointed to the Maryland precedents. Clinton replied (and here I paraphrase) that he really didn't give a darn what the Journals said. Talbot finished out his term (which, in fact, expired before the exchange of letters ended). In other words, we see a Maryland norm, brought to Congress by members of the Maryland congressional delegation, spread to their congressional colleagues, who then attempt to bring it back to their home states, where it surprises those familiar with their own states' legislative norms.

This may explain how resignation came to the House, but it is certainly true that resignation did, indeed, come to the House. Current federal law, in effect since 1872, allows states to set the time for filling House vacancies, "whether such vacancy is caused by a failure to elect at the time prescribed by law, or by the death, resignation, or incapacity of a person elected." (Emphasis added.) This explicit recognition of the possibility of resignation is accompanied by a House practice that "[a] Member properly submits his resignation to an official designated by State law and simply informs the House of his doing so, the latter communication being satisfactory evidence of the resignation." In short, the House has essentially concluded that resignation is a matter of individual right — that is, a matter for the Member alone to decide. Contra Madison in the Third Congress, a vote is no longer taken.

In my next post, I'll argue that longstanding congressional practice notwithstanding, there are good reasons for requiring the House to vote to accept resignations. If you want further documentation of or elaboration on any of the points above, they are summarized from pages 36-46 of the article draft on SSRN.