New Jersey Supreme Court Rules That Voters Cannot Recall a US Senator

The New Jersey Supreme Court has held that the Constitution does not permit states to recall members of Congress. The ruling ended a Tea Party-backed effort to remove Senator Robert Menendez from office.

As I argued in two previous blog posts, US Supreme Court precedent clearly holds that the Constitution establishes the sole requirements of members of Congress. In the past, the Court invalidated a decision by the Speaker of the House not to seat Representative Adam Clayton Powell due to allegations of ethical misconduct. The Court also struck down a state law that established term limits for members of Congress. In both of these cases, the Court held that the Constitution sets forth the requirements for members of Congress and that neither Congress nor the states could alter those standards.

Furthermore, the Framers of the Constitution considered, but rejected, language that would have permitted the recall of members of Congress. The Constitution, however, allows for Congress to expel members by a 2/3 vote.

The New Jersey Supreme Court agreed with my analysis and reversed a lower court ruling that permitted the recall process to advance. Although the Tea Party frequently invokes the Constitution in its political commentary, the group made a gross misjudgment on this issue.

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.