Bench Memos

No Federal Recall

A blogger at Big Government calling herself “Liberty Chick” reports on an effort afoot in New Jersey to place a recall of U.S. Sen. Robert Menendez before the people of the state.  The New Jersey constitution has contained, since the mid-1990s, a provision that the “people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress.”  But upon receipt of the legally required petition for a recall election, complete with the many signatures needed, New Jersey Secretary of State Nina Wells has declined to accept the petition or to act on it, stating her office’s determination that no recall of a U.S. senator can legally be conducted, notwithstanding the provision in the state constitution

“Liberty Chick” is mighty upset about this, wanting to know how it can be that the New Jersey constitution is unconstitutional–if it is, how a mere executive branch official rather than a judge gets to say so–and why the electoral machinery of the state couldn’t be employed in any event, even if the results have no legal force and only amount to a “no-confidence vote” in Menendez.  Commenters at the BG site are for the most part pretty irate at what Wells has done.

But Wells has this perfectly right.  The term of a U.S. senator is six years, unconditionally, and nothing a state says to the contrary (even in its constitution) can have any effect on this fact.  Even before the Seventeenth Amendment, when state legislatures rather than voters chose U.S. senators, no “recall” was possible.  Under the Articles of Confederation, members of the unicameral Congress had one-year terms, were limited to serving three years in any six, were paid by their states, and could be recalled at any time by the legislatures that chose them.  The framers of the Constitution consciously rejected every one of these features, fixing longer terms in place for both houses of the new bicameral Congress, imposing no term limits or rotation requirement, paying members out of the federal treasury, and making no provision for recall.  The duration of a House member or senator’s term of office is set by the Constitution that calls the office into being, and cannot be changed by the action of a state even through its constitution, either by alteration of the fixed term length or by giving a power to the people to shorten a serving member’s term at the polls.  The principle of the supremacy of the federal Constitution over each and every state constitution (declared in Article VI) is all we need to know here.  And if the framers of the Constitution had wanted to make it possible for states to shorten the terms of senators, they knew how to frame language permitting that option.  They didn’t.

And why shouldn’t the state’s secretary of state, an executive officer responsible for conducting its elections, make this determination?  That same Article VI says “[t]he Senators and Representatives, the members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”  An executive officer with Wells’ responsibilities would be derelict in her duty if she were not to decline taking steps to violate the federal constitution by conducting an unauthorized “recall” election.  And to expect her to go ahead and conduct the election anyway, on the supposition that although invalid the “recall” could still serve some public purpose as an informal “no-confidence vote,” is to demand a double fraud of her–that she should both exercise power under an unconstitutional provision of state law and then violate even that provision by declaring that no recall had really taken place.  Not to mention that scheduling and conducting this empty exercise would no doubt cost millions.  Waiting for instruction from a judge before doing what’s obviously right here would be the height of irresponsibility.

Garden Staters gave themselves the dubious gift of Robert Menendez in the U.S. Senate by electing him in 2006.  Barring his voluntary early resignation, or something still more untoward that we cannot wish on him, the 2012 election is the next chance the people of New Jersey get to weigh in on his continuance in office.

UPDATE: “Liberty Chick” writes to tell me that she was not “mighty upset” but merely inquisitive about the issues in this situation.  I stand corrected.  Another reader inadvertently reminds me of an argument I forgot, which strengthens my case above: that there is a way to “recall” senators before their six-year term is completed.  It’s the removal power of the whole Senate over each of its members, by a two-thirds vote.  (The House has the same power over its members.)  The fact that this removal power is provided is further evidence that the framers did not contemplate–indeed considered and rejected–leaving a recall power in the hands of the states.