Law & the Courts

No, the Constitution Doesn’t Allow Romney to Be Recalled

Sen. Mitt Romney leaves the Senate floor at the end of the day’s Senate impeachment trial of President Trump in Washington, January 28, 2020. (Mary F. Calvert/Reuters)
A Utah bill aimed at giving voters the power to recall senators will never hold up in court.

Donald Trump’s supporters are predictably angry with Utah Republican senator Mitt Romney for voting to remove the president Wednesday. After the senator’s decision was announced, #RecallRomney went viral on Twitter, with Charlie KirkBrigette Gabriel, and countless other red-hatted, blue-checkmarked accounts endorsing a bill before the Utah legislature that would allow for senators to be recalled in an election.

Already, the bill’s sponsor, state representative Tim Quinn, has provided an . . . interesting perspective on its constitutionality, telling the Deseret News that it strikes a “good compromise between pre- and post-17th Amendment.” Last I checked, state legislatures are not permitted to “compromise” between what is presently constitutional and what is not. Needless to say, there’s almost certainly no way the Utah bill will survive a court challenge if it becomes law, so the #RecallRomney folks are setting themselves up for disappointment.

The closest the Supreme Court has come to addressing recall elections for members of Congress was its 5–4 decision in U.S. Term Limits, Inc. v. Thornton. As the name suggests, the Court was speaking specifically to term limits in that case, but the majority opinion penned by Justice John Paul Stevens rejected the argument that states could add congressional qualifications that weren’t “specifically enumerated in [the Constitution’s] text” just because our foundational document was silent on the matter. That clearly doesn’t bode well for the notion that states can mandate additional elections for sitting members of Congress.

Originalists will note that Justice Clarence Thomas and three other conservatives on the Court dissented in that case. The general tone of Thomas’s argument, at first glance, would actually support the constitutionality of a state recall election. “Where the Constitution is silent, it raises no bar to action by the States or the people,” Thomas wrote. “The people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications for their representatives in Congress.”

But Thomas went on to specifically cite recall elections as the sort of thing the Constitution wasn’t silent on. “[A] power of recall,” he wrote, was something “the Framers denied to the States when they specified the terms of Members of Congress. The Framers may well have thought that state power over salary, like state power to recall, would be inconsistent with the notion that Congress was a national legislature once it assembled.” The majority opinion likewise made note in a footnote of “the Framers’ decision to reject a proposal allowing for States to recall their own representatives.”

So that’s all nine of the Justices at the time, liberal and conservative alike, endorsing the position that congressional recall elections are not constitutional. And with good reason; the plain text of the Constitution states that senators shall be “elected by the people . . . for six years.” If Romney were recalled in November, he would have served two years. Two, for those keeping track at home, is less than six. So the Utah recall bill rather clearly violates the Constitution. (And contrary to Representative Quinn’s baffling contention, none of this rises or falls on the Seventeenth Amendment, which merely shifted the power to elect senators from the state legislatures to the people.)

What’s more, the Constitution doesn’t just fix senators’ terms; it also provides a fixed timeline for their election, mandating that “one third may be chosen every second Year.” If states have the ability to recall senators mid-term, the entirety of this constitutional rotation scheme would be rendered toothless, and there’d be nothing keeping half, two-thirds, or even the entire Senate from facing voters every two years. The Framers clearly did not intend for states to have the power to ax an entire clause out of the Constitution.

A quick perusal of the historical record indicates that the original understanding of the Constitution was that it did not allow for recall elections. The Articles of Confederation reserved to each state the power “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.” The absence of such a provision in the Constitution was widely understood at the time of ratification to mean the states no longer enjoyed that power.

As the Court noted in U.S. Term Limits, the recall power was considered and rejected during the Constitutional Convention. The Virginia Plan drafted by Edmund Randolph explicitly stated that representatives would “be subject to recall,” but that language was struck out by unanimous vote. Madison’s notes indicate that afterward Massachusetts delegate Elbridge Gerry — he of “Gerrymandering” fame — unfavorably compared the proposed Congress to that of the Articles of Confederation because the new legislators “are not subject to recall.”

The lack of a recall power was seized upon by the Anti-Federalists, becoming the subject of numerous pamphlets. Anti-Federalists in ratifying conventions in New York, Massachusetts, Maryland, Virginia, and North Carolina all expressed the view that the new Constitution did not allow states to recall members of Congress, and railed against that state of affairs. Three states — New York, Pennsylvania, and Rhode Island — introduced amendments that would’ve restored the recall power. All were rejected.

At no point did the Federalists respond with what would seem like the obvious rejoinder, that opponents of the Constitution were misreading it and states could still recall their representatives. On the contrary, Alexander Hamilton cited the recall power as a reason to reject the status quo. “The members of Congress [under the Article of Confederation], being chosen by the states and subject to recall, represent all the local prejudices,” Madison records him as saying during the Convention. “Should the powers be found effectual, they will from time to time be heaped on them, till a tyrannic sway shall be established.”

What those trying to recall Romney miss is that the Senate is undemocratic and unresponsive to the people by design. Hamilton, in Federalist No. 63, described the Senate, with its long terms of office and slow rotation, as “a defense to the people against their own temporary errors and delusions”:

As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

It is not overstating things to say that the Framers designed the Senate with precisely this sort of national moment in mind, and that bucking the Republican Party’s “tyranny of their own passions” is what they hoped Romney would do. To that end, the Framers included a number of safeguards, one of which is that Utah can’t kick out Romney ahead of time simply because he took an unpopular vote. If Trump supporters want Romney out of office, they can mobilize in 2024. Until then, all they can do is wait.

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