Tea Party Attempting Unconstitutional "Recall" of Democratic Senators

As much as Tea Party members whine that Congress is violating the Constitution, one would expect the group not to advocate clearly unconstitutional measures itself. Well, this logic has not influenced the Tea Party movement.

According to the Washington Times, the Tea Party movement is trying to "recall" several Democratic senators before their terms in office expire. The Washington Times reports that several states have "recall" measures that cover federal officeholders. There is a major problem with these laws: they violate the Constitution.

As the Supreme Court held in Powell v. McCormack, the Constitution establishes all of the requirements for members of the House and Senate. In Powell, the Court held that Congress could not alter those requirements. The House tried to block Adam Clayton Powell from taking his House seat on the grounds that he had engaged in financial impropriety. The Constitution, however, did not allow the House to block Powell, because he had met all of the requirements of office listed in the Constitution.

In US Term Limits v. Thornton, the Supreme Court extended Powell and held that states lacked the authority to alter the requirements of members of Congress as well. Thornton involved a challenge to an Arkansas law that established term limits for members of the House and Senate. The Court held that the law violated the Constitution. There is nothing unique about a "recall" statute that would make it permissible.

Nothing in the Constitution permits the recall of members of Congress -- although the Constitution does allow each house to "expel" a member. The only power that voters have over members of Congress comes through the normal electoral process. That process takes place every six years for members of the Senate and every two years for members of the House. The Tea Party crowd will have to wait until the targeted senators complete their terms. Yes -- the law applies to everyone.

Defiant Blagojevich Names Obama's Successor: Decision Raises Political and Constitutional Questions

Embattled Illinois Governor Rod Blagojevich has defiantly named a successor to serve the remainder of Obama's Senate position. Any candidate that the governor named would have caused conflict, because many politicians, including Obama, have called for Blagojevich to resign and to refrain from naming a successor. But Blagojevich's decision to select former State Attorney Roland Burriss for the position presents even greater political complexity.

Race Politics

Burriss, who is black, would become the only black member of the Senate if his nomination survives a likely battle in the Senate. By picking a respected black politician to replace Obama, Blagojevich forces Democrats to either deny a Senate seat to a black politician or to legitimize his defiant exercise of authority over the process despite increasing demands that he leave office or otherwise decline to name a successor.

It appears that Blagojevich intentionally introduced race politics to the selections process. He first offered the position to Danny Davis, a black member of the House of Representatives, but Davis turned down the offer.

And during the press conference at which Blagojevich made the announcement regarding Burriss, Bobby Rush, a black member of the House of Representatives, stated that: “There are no African-Americans in the Senate . . . And I don’t think that anyone, any U.S. senator who’s sitting in the Senate, right now, wants to go on record to deny one African-American from being seated in the U.S. Senate.”

Rush also urged members of Congress not to "hang or lynch the appointee as you try to castigate the appointer." In response, Blagojevich added: "Feel free to castigate the appointer but don't lynch the appointer. I am not guilty of any criminal wrongdoing!"

Constitutional Questions

Blagojevich's decision to name a successor also complicates an already complex legal situation. Senate Democrats vowed to reject any candidate that Blagojevich names. They claim the authority to do so based on Article I, Section 5 of the Constitution, which states that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . ." But the Supreme Court narrowly interpreted the scope of this provision in Powell v. McCormack.

In Powell, the House of Representatives refused to seat Adam Clayton Powell of New York, who faced accusations of financial impropriety. John McCormack, the Speaker of the House, claimed such authority under Article I, but the Supreme Court (in a 7-2 ruling) held that the Constitution only gives each chamber the power to judge those qualifications specifically listed in the constitution (e.g., that candidates for Congress meet certain age or residency requirements and that they were chosen under prescribed procedures). The Court's narrow interpretation of Congressional authority under Article I, Section 5 favors Blagojevich and Burriss.

Even if a candidate meets the requirements to occupy a seat in Congress, the Constitution nevertheless permits each house to "expel" a member. Expulsion, however, requires a requires a 2/3 vote and a showing that the candidate for expulsion has engaged in wrongful conduct

Given the public sentiment against Blagojevich naming a successor, at least 2/3 of the Senate probably does not want Burriss to take office. But unless these Senators can demonstrate that Burriss has engaged in improper conduct, they would not have a legitimate basis to expel him. If the Senate refuses to acknowledge the appointment, and Burriss does not withdraw his acceptance of the offer, then Burriss would have to initiate litigation seeking an injunction barring the Senate from refusing to seat him.