Absolute Lunacy From New Jersey: Appeals Court Rules That State Must Allow Recall Petition to Proceed

A New Jersey Appeals Court has ruled that state election officials must allow a recall petition of Senator Menedez to proceed.  This is a baseless ruling.  The best thing the court could say about the constitutional question is the following indecisive point:

To summarize, we neither declare the recall provision in our State Constitution as applied to a United States Senator definitively valid or invalid (emphasis added).

I have discussed this matter before (see here). The Supreme Court has repeatedly held that neither Congress nor states can alter the requirements and conditions for members of Congress. The Court has precluded Congress from refusing to sit duly elected members due to "unethical" conduct. The Court has also precluded states from establishing term limits for members of Congress.

The recall is a more invasive step than a term limit. Furthermore, the Framers considered but refused to adapt language that would have allowed for the recall of members of Congress. The only method the Constitution provides for "recall" is the expulsion process. That power, however, rests with Congress alone -- not the states.

The New Jersey court discusses this abundant precedent and concludes that it provides a strong argument against the constitutionality of the New Jersey recall provision. Nevertheless, the court morphs into a first-year law student and pretends that the absence of language in the Constitution or prior cases explicitly mentioning "recall" means that the question remains undecided and that it cannot invalidate a state constitutional ruling without definitive authority.

Most shockingly, the New Jersey court holds that the absence of precise language in the Constitution on this issue could mean that states retain the power to recall members of Congress. This is the exact argument that the Supreme Court rejected in the term limits ruling. The New Jersey court, however, cites to Justice Thomas' dissent in the term limits case to support this proposition. So, the New Jersey court actually behaved in a manner that is less sophisticated than first-year law students. They know better (at least my students) than to base an argument on a rejected point of law. Hopefully, the New Jersey Supreme Court will reverse this stupid ruling. Stupid is the best word I can use to describe it.