Tuesday, March 16, 2010

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.


Sue said...

stupid yes, but this is serious and has me FURIOUS!! I can't believe something like this can happen in the USA! The teabaggers cry all the time about their constitutional rights, what the hell do they think they are doing trying to remove a Senator who was elected by a majority. Wow, I am stunned...

Darren Lenard Hutchinson said...

Sue, the only redeeming value to the opinion is that it rests on a very old judicial maxim -- that courts should not rule on constitutional questions unless absolutely necessary. The court held that because the Tea Party folks have not collected the signatures yet, that there is no need to get to the constitutional question.

There are several problems with this. FIRST, the Court gives too much to the argument that this is unsettled. The Supreme Court has held that neither states NOR Congress can add to the requirements of members of Congress. If states cannot limit the terms of members of Congress, they certainly cannot prematurely end a term through the recall process. In fact, the Framers denied states this very power. Instead, only the expulsion process was written into the text, and only a house of Congress can initiate that process.

SECOND, the state argued that the entire process is unconstitutional (even accepting the petition), because states cannot modify the requirements of members of Congress. The court treated the petition process as distinct from a recall election itself. But that makes no sense. Under this logic, the court could allow a recall election, but then nullify it by reaching the constitutional question at that point. This seems like a harsher blow to voters than simply preventing the process from starting in the first place. It also preserves important state and private resources.

The NJ Supreme Court will ultimately do the right thing. I am not sure if this will happen before or after the signature process begins. As for the US Supreme Court, 4 justices wanted to allow states to modify the requirements of members of Congress; Kennedy, however, joined the liberals.

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