[Josh Chafetz, guest-blogging, July 22, 2008 at 1:11pm] Trackbacks
The Constitution on Congressional Resignation,

or, Part III of Leaving the House. In the last two posts, I've traced the history of devices used to leave the House of Commons and argued that no pre-constitutional American legislature, with the sole and explicit exception of Maryland, allowed resignation as a matter of right.

In this post, I want to look at the Constitution itself. First, let's look at the text. Article I, sec. 2, cl. 4 provides that, "When vacancies happen in the [House] Representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies." In contrast, Article I, sec. 3, cl. 2 provides that, "if vacancies [in the Senate] happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies." (Emphasis added.) The Constitution also mentions resignation in the context of the Presidency (Article II, sec. 1, cl. 6 and Twenty-Fifth Amendment) and the Vice-Presidency (Article II, sec. 1, cl. 6). So, how pregnant is the silence as to resignations with regard to the House?

Let's look at the history. At the Philadelphia Convention, Edmund Randolph's "draft sketch" of a constitution provided for filling vacancies in the lower house of the legislature caused "by death disability or resignation." Randolph's sketch was taken up by the Committee of Detail, but that was the last time at the Convention that this wording appeared. The Committee of Detail reported a draft to the full Convention which provided for the filling of vacancies in both houses, but said nothing as to how such vacancies might arise.

The provision for filling House vacancies was unanimously agreed to by the Convention, but the provision for filling Senate vacancies occasioned some debate. Most important for my purposes is the following colloquy between James Madison and Gouverneur Morris:

Mr. Madison in order to prevent doubts whether resignations could be made by Senators, or whether they could refuse to accept, moved to strike out the words after "vacancies". & insert the words "happening by refusals to accept, resignations or otherwise may be supplied by the Legislature of the State in the representation of which such vacancies shall happen, or by the Executive thereof until the next meeting of the Legislature"

Mr. Govr. Morris[:] this is absolutely necessary. otherwise, as members chosen into the Senate are disqualified from being appointed to any office by sect. 9. of this art: it will be in the power of a Legislature by appointing a man a Senator agst. his consent, to deprive the U.S. of his services.

Madison's proposal passed unanimously. Tellingly, not a single delegate quibbled with the assumption underlying Madison's and Morris's comments, that absent an explicit mention of resignations, Senators might be prevented from resigning. Equally tellingly, not a single delegate proposed similar language for the House of Representatives. One would, it seems to me, have to have a low opinion, indeed, of the intelligence or attentiveness of the Convention delegates to think that this was a mere oversight and that they intended for Representatives to have a constitutional right of resignation, as well.

But why might the Founders have wanted to treat the House and Senate differently when it comes to resignations? I can think of three reasons. First, term length. They may have thought that many of the new republic's leading lights would refuse to stand for a six-year term in a new and unfamiliar government if they could not be assured of a right to leave if things went badly. A two-year House commitment may have been thought to pose no such problems.

Second, it was possible at the Founding that someone would be elected to the Senate against his will. A cabal in the state legislature could remove someone — say, the leader of the opposition party in that state — from the state political arena for six years by appointing him to the Senate. In an era in which state politics were more important to many people than national politics, this was not inconceivable; a right to resign would, however, operate to prevent it. Again, it was much less likely that this would happen in the House, where members were directly elected by the voters.

Finally, there was a difference as to function. At the Founding, especially, the Senate was a representative of state interests. Consider the practice of instruction. When a state 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 ...." The difference in wording is a clear consequence of the differences in institutional design between the two houses of Congress. But what to do if the Senators disobeyed? The Constitution contains no Articles of Confederation-esque recall provision. The answer lay in the honor politics of the early republic. Beginning with John Quincy Adams in 1808, Senators who were unwilling to follow instructions were expected to resign, and a number of them did so. Answerability to the states thus provides a third reason for treating the House and Senate differently with regard to resignations in the Founding era.

So, to recap: Thus far, we have seen that no right of legislators to resign has ever existed at English law. We have seen that the English practice formed a sufficiently powerful background legal norm that the only American jurisdiction to reject it — Maryland, in its 1776 Constitution — did so explicitly. We have seen that the drafters of the Constitution operated with the assumption that, unless they made explicit provision for it, legislators would not have the right to resign. We have seen that they did make explicit provision for the resignation of Senators; moreover, they had Randolph's draft before them, which would have explicitly provided for the resignation of Representatives, but they chose not to use that wording. All of this combines to suggest that Members of the House of Representatives have no constitutional right to resign. As a constitutional matter, Members may request the House's permission to surrender their seats, but the House is not bound to give that permission.

We are, however, used to seeing Members of the House resign all the time. In my next post, I'll explain how we got there. If you want further documentation of or elaboration on any of the points above, they are summarized from pages 28-36 of the article draft on SSRN.