Friday, February 26, 2010

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.


Sue said...

Darren this is happening in my state of New Jersey with Senator Menendez. It is appalling to say the least, their excuse is he voted for the HC reform bill and just in general they are not happy with Sen. Menendez and his views. HORRENDOUS! I hope the Senator fights with every ounce of dignity he has, those F'in baggers can not get away with this!!

Darren Lenard Hutchinson said...

Apparently, it's in court; the court could simply read the two cases I cited and call it a day!

James H said...

From the GOP conservative side of the Universe I agree with you on this.

Of course I find on this subject the belief you can do this is often a bi partsian affair with the public

Darren Lenard Hutchinson said...

James: I agree. I suspect a lot of people believe in the legality of term limits (at least) and recalls. It could actually hurt both parties. But I approach it from a purely constitutional perspective.

Hablemos said...

I think that when they stop to represent the majority of their voters. The people who elected them; if they can collect a majority of voters signature, should have the right to recall them. A great way to keep the senators close to their constituents and in touch with their voters and reality. This goes both ways.
Great for New Jersey and the Tea Party!

Darren Lenard Hutchinson said...

Yeah, but the NJ Sup. Ct. should reverse. This is a silly ruling. The only way to justify it is by saying that they don't have the signatures yet -- so let's hold off on the con law question. Otherwise, it's a slam dunk against the Tea Party.

Btw, I feel the same way about liberal discussions of recalling conservatives.

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