Menendez NJ Recall Update: The Tea Party Goes to Court
by Liberty ChickIt’s Not About the Recall, It’s About the First Amendment
Review of case briefs, case law research, and consultation with a number of attorneys, judges, and legal professionals contributed to the writing of this article.
Tea Party activists might be smarter than some would like to think. And depending upon the outcome of a court case later this month, they might also play a role in setting legal precedent.
When New Jersey state election officials denied their submission to initiate a recall effort against U.S. Senator Robert Menendez, calling it unconstitutional, a grass-roots recall committee’s constitutional instincts kicked into full gear. Attorneys for the committee, themselves Tea Party activists, filed to appeal the agency decision and began writing their supporting brief.
Meanwhile, seemingly everyone was now weighing in as a legal expert. Some insist the decision is simple: NJ has no constitutional authority to recall a US Senator; despite what its state constitution says, that authority is reserved for the federal government alone. For weeks now, legal scholars, political pundits and the media have been chattering online about the case, now before the Appellate Division in the Superior Court of New Jersey, some treating it more like a sideshow and an outlet to take pot shots at Tea Partiers than a legitimate court proceeding with real constitutional significance.
But Dan Silberstein and Richard Luzzi, attorneys for the Committee to Recall Robert Menendez, a committee initiated by members of the Sussex County Tea Party, see this case in an entirely different light. They insist this case is not about whether a recall order from the state is judicially enforceable against a United States Senator, rather, it’s all about protecting the first amendment right to free speech. And they are taking the matter very seriously. Based upon recent developments in the case, apparently so are several others, including some high profile legal experts and the courts.
In a two-part order just issued Thursday, February 4th, Judge Edwin Stern granted the committee’s motion to accelerate their appeal and scheduled oral argument for 10:00am on Friday, February 26th in a Mercer County, NJ courtroom. In addition, the American Civil Rights Union (ACRU), has taken interest in the case and had filed an emergent application requesting approval to participate in the appeal as amicus curiae (friend of the court), given the broader constitutional implications of the case. In the same order, Judge Stern also granted the ACRU’s emergent application and approved the organization’s participation in the appeal.
NOTE: For a complete history of this case leading up to the appeal, including the constitutionality issue between the NJ state versus federal constitutions, please refer to my prior article on the topic, entitled “Is New Jersey’s State Constitution Unconstitutional? Campaign to Recall Senator Menendez Turns Into Battle of the Constitutions.”
The Constitutional Question
When the parties present their oral arguments on February 26th, much of the case may come down to how it is framed. Attorneys for both Senator Menendez and for NJ state election officials have focused their briefs solidly on one key constitutional point:
“As the US Constitution reserves to the United States Senate the power to expel and determine the qualifications of its own members, New Jersey has no authority to recall a US Senator.”
While this is a premise that has agreement among legal scholars, it is also largely debated – because it has never actually been definitively ruled in a court of law. Many loosely related rulings or references to debate at the Constitutional Convention are often cited, though, as the NJ State Attorney General herself concedes, “there are no federal decisions squarely on point.” Most importantly, NJ actually changed its state Constitution in to specifically permit the recall of a US Senator after a ballot vote in 1993. In the absence of any definitive ruling that renders the state’s recall law unconstitutional, other legal experts maintain that the Committee may very well have a legitimate case to plead.
The Committee’s attorneys argue that the constitutional issue raised by the state and Menendez attorneys is not ripe anyway. Since the recall notice was denied before the petition could circulate, before it could be certified that the petition met the minimum number of signatures required, before a recall election could be conducted, and before an election result could even be certified, no one has even made any demand yet that a recall order be issued against Senator Menendez.
They contend that the State is focused on the wrong issue:
“The State, asserting only that it has no power to issue a judicially enforceable order to recall a U.S. Senator, argues the Committee has failed to demonstrate a likelihood of success on the merits. However, the State focuses on the wrong issue.
This issue before this Court concerns the State’s content-based restriction on the Committee’s right to freely exercise core political speech, not the dispute over whether a recall order issued by the Secretary of State is judicially enforceable as against Senator Menendez or the United States Senate.
The Committee has clearly shown a likelihood of its ultimate success on the sole ripe Constitutional issue before the Court, i.e., the right to freely engage in core political speech.”
So, while the attorneys for the state and for Senator Menendez are primarily focused on the Constitutional question of who has the right to recall a US Senator, attorneys for the committee are focused on the constitutional question of First Amendment rights.
Not only do they maintain that denying the committee the right to petition for signatures violates their first amendment rights, but that doing so based upon the premise that the end result of a recall effort might not be enforceable amounts to a content-based restriction on free speech. In other words, the fact that the recall target is a US Senator should be treated no differently than that against a state Senator – the state cannot deny the petition based upon who is targeted or what it thinks the outcome might be . Whether it conflicts with the US Constitution or not, NJ’s state Constitution specifically permits the recall of a US Senator; that language was added to the state constitution and the NJ Uniform Recall Election Law enacted in 1995. And no decisive court ruling has ever been made otherwise to definitively declare NJ’s recall provisions unconstitutional. Unless and until that is challenged and decided, officials in NJ have a duty to abide by the state Constitution.
Attorneys for Menendez maintain that “While the citizens of New Jersey are unquestionably free to assemble, speak their minds, and petition their government, they are not entitled to state action certifying those activities in violation of the US Constitution.”
The Committee’s attorneys take issue with this. At the heart of the recall committee’s appeal is this question:
“Can the State, after amending its Constitution and passing legislation to guarantee its citizens access to a formal, State-endorsed mechanism to foster collective “core political speech”, deny its citizens access to that mechanism because of the content of their political message?”
“The answer is no. Neither the State nor Federal Constitutions prohibit the citizens of New Jersey from adopting a formal, State-endorsed mechanism to foster collective “core political speech”. To the contrary, both Constitutions prohibit the State and Federal Governments from enforcing content-based restrictions on access to those mechanisms once put in place.
New Jersey citizens have the constitutionally guaranteed right to select the subject matter of an election. Just as they are free to speak on any political matter, and to assemble for any political matter, and petition on any political matter, the citizens of New Jersey have the right to roll out the voting apparatus of the State to vote upon any political matter they choose, irrespective of whether the vote results in a legally enforceable certification. The election apparatus is the property of the People of New Jersey, and nobody (including Senator Menendez, the United States Senate, or the State or Federal governments) may restrict access to that apparatus based upon the content of the message.
Regardless of whether it would be judicially enforceable against the United States Senate or Senator Menendez, certification of a successful recall election, and all efforts to obtain it, remain “core political speech” and are entitled to the Court’s most strident protection.”
Many, including Menendez attorneys, will argue that the courts have a duty to uphold the NJ Secretary of State’s decision to deny the recall notice of intention in its entirety. They maintain that deferring the constitutional issues until a successful recall order is achieved and then challenged in court would “inflict uncertainty on the parties and the public”, suggesting a judge is compelled to ban the effort sooner rather than later. Menendez attorneys rely pointedly on the following reasoning in their brief,
“The US Constitution reserves to the US Senate the exclusive power to expel, seat, and determine the qualifications of its own members. Accordingly, NJ has no authority to recall a US Senator despite the provisions of constitution and statutes.”
Attorneys for the Committee reiterate in their brief that the question before the court is not that of recall authority. That issue is not ripe. But if the issue must be argued, they would contend that a court has yet to rule on this issue in NJ. Where the vehicle of federal recall is concerned, there is more than one school of thought in the legal community on this one.
Constitutional History of the Recall
Even at the federal level, the issue of recall is not necessarily as black and white as some would insist. When citing the power to recall, legal professionals typically refer to Article 1, Section 5 of the US Constitution. That exact wording is as follows:
“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.”
While it is generally agreed that recall authority is the jurisdiction of the Congress by way of the language “expel a member”, the reality is that the language regarding recall specifically is not actually mentioned anywhere in the US Constitution. To this day, many believe it should have been. Prior to the ratification of the US Constitution, federal officials were in fact subject to recall by their states under the Article V of the Articles of Confederation.
During the Ratifying Convention in New York, the power of the states to recall was a hotly debated issue over the course of several days. Some wanted states to retain the power of recall in the new Constitution and expand it to Senators, others feared that such power would tie senators too strongly to their states’ interests and away from serving the interests of the union. In the end, it was left out of the Constitution altogether as a compromise to gaining consensus from all the states. This is perhaps why the power to recall is neither specifically granted nor prohibited in writing. This became a driving issue for some founders, like Thomas Jefferson, who as an anti-federalist believed in states’ rights and wanted to see more of Congress’ own powers specifically limited in writing, such as the recall of US Senators.
(In 1913, the 17th Amendment of course then transferred the power to elect US Senators from the state legislatures to the people of the states. While this was intended to put Senators closer to their constituents, it probably only disconnected them even more.)
For decades, legal researchers engaged in the debate on who has the power to recall have relied on the interpretation of Article I, Sections 2 though 5 and on assumptions about the intent of the framers; some reliance is also placed on case law, which is sparse on this subject. To that end, there is no definitive ruling on a case out there that directly addresses the question. References are often made in part to cases like US Term Limits, Inc. v. Thornton, which might apply only indirectly; all are silent on the specific issue of the state’s power to recall a US Senator.
While the Committee to Recall Menendez and their attorneys recognized from the start that the Constitutional question of recall jurisdiction could be a potential hurdle, their argument today is resolutely focused on their First Amendment right to free speech.
It’s precisely the type of argument that caught the attention of the American Civil Rights Union, which recently joined the appeal as a friend of the court to represent the public’s interest. Peter Ferrara, General Counsel for the ACRU, recently sought approval to participate in the appeal as amicus curiae from Silberstein and Luzzi, who were happy to oblige. Ferrara and his organization recently participated in the Citizens United v. FEC case that was favorably decided by the Supreme Court. The addition of the ACRU as a supporter to the appeal lends additional credibility to the cause of protecting first amendment rights.
The ACRU was founded in 1998 by Robert B. Carleson, long time policy advisor to President Reagan, as a non-partisan, non-profit 501(C)(3), legal/educational policy organization dedicated to defending constitutional rights. Its policy board includes former US Attorney General Edwin Meese III; Pepperdine Law School Dean, Kenneth Starr; former Assistant Attorney General for Civil Rights, William Bradford Reynolds; and Judge Robert H. Bork, among many others. Its experts are established professionals in their legal field. In addition to the public interest in this matter regarding the functioning of our democracy and the constitutional rights of the citizens of NJ, the ACRU also maintains that the recall of US Senators is a matter of broad, national public interest across the entire country. It plans to file a brief addressing the right of recall in NJ under the law of the state of NJ, the Constitution of NJ, and the US Constitution.
Consider what the committee’s appeal is requesting. It does not ask a court to enforce a recall order against a US Senator. It does not demand a recall election. The Committee is merely seeking an order directing the Secretary to apply her stamp to its Notice of Intent to Recall, marking it “Approved” as per the NJ’s law. The burden of gathering the signatures of 25% of the registered voters across the State rests solely upon the Committee. If it’s unsuccessful in doing so, the issue ends there.
The petition is one preliminary step in the overall recall process. To deny the Committee its right to free speech, the powers that be should be unquestionably sure that precedent supports such an action. The Constitution of NJ may very well be unconstitutional. But no court has ever ruled that the recall provisions added to the NJ state Constitution are unconstitutional under the federal Constitution. Nor has any court ever squarely ruled that it is unconstitutional for a state to recall a federal official. Until these issues actually make their way to a competent court for a definitive ruling one way or the other, they will continue to be disputed, unsettled federal Constitutional issues that muddy up the democratic electoral process.
Ironically, it was the Progressives who artfully perfected the use of recall at the local and state levels in the early 1900’s, but never moved into federal recalls. Who knows? Perhaps it will be the Tea Party movement that will finally bring a restless constitutional issue to rest.
For more information:
American Civil Rights Union’s “Recall Congress” project and the provisions for recall in NJ and eight other states, visit www.recallcongressnow.org.
Also read “The Right to Recall the Rascals“, John Armour; “We Really CAN Throw the Bums Out“, Peter Ferrara.
Organizations working with the recall committee in NJ, visit the Sussex County Tea Party, NJ Recall Now or New Jersey Tea Parties United.
View press release and download briefs for the case, Committee to Recall Robert Menendez v. Nina Wells, Secretary of State, et al., Docket A-2254-09T1
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167 Comments
Isn't this was the Founding Fathers had in mind, citizen politicians, not politician professionals who stand athwart the will of the Republic?
No wonder it looks like Harry is holding what's left of his manhood up for all to see.
Onward New Jersey, and good luck, maybe we'll be able to __get rid of more of these losers with the recall option…
not only do i hope they win in nj, but that it spreads like wildfire in all the states, all 58 of them(obama said he had visited 57 and had one to go) because then perhaps some of these jerks in the senate can be replaced by true statesmen!
point of order — when he barfed the now infamous 57 comment he noted he had 1 to go IN THE LOWER 48, for a grand total of 60. simply f'ing up 57 for the presumed 47 has led me to give him a [small] pass on that particular gaffe — i treat it more as an illustration that, w/o a teleprompter, he's so dense and self-absorbed he states inanities — much like his veep [!]
Go Mandy, Go Daniel Go!!! Keep up the good work. Boots on the Ground, Foot Soldiers, Lets Roll!!!!!!
The Committee has an uphill legal battle, I'm afraid, and I don't know which Constitutional argument is the stronger, but I do know this much-
Bob Menendez is a lying sack of sh!t and any legal means of booting his sorry ass is a Good Thing.
Very interesting.
Hmmmmm the exact same roadblocks have occurred regarding a recall attempt of Mary Landrieu here in Louisiana. Honestly, even if it is possible, the recall attempt of Blanco (who I refer to as Blank Zero) failed to produce the required signatures. Most in the state despised her but did not want to recall her.
Landrieu is much more likely to be recalled due her complete blocking out of her constituents in the month of December ahead of her vote on Obama/Pelosi/Reid Deathcare.
Let the fun commence.
Before direct election of US Senators, are you SURE that no State Legislature ever recalled their Senator? I thought I had heard of such a case.
Oh, and since we've been talking so much about Lincoln and the Civil War lately. What was the constitutional mechanism by which Southern memers of Congress were suspended?
Much respect and good will to the NJ Tea Party.
Popular recall of federal Judges. Now that's an idea I'd like. Maybe the Supreme court could "imagine" it into the Constitution.
…..and he's grooming his daughter for public office. Nepotism.
We have much work ahead of us, much work….
…but, each victory "shall renew our strength, and we shall mount up like eagles".
Stay Strong, Brave and Beautiful for America
Dems do have a history of changing the States' Constitutions right before they loose. Conzine did it, Kennedy did it. The only thing we have to say is ENOUGH ALREADY!!!
Wonder if they are listening to the tea partiers now?
We're mad as heck and we're not gonna take it any more.
My prayers and very best wishes.
This story also shows why the Articles of Confederation was a better constitutional arrangement than the Constitution that replaced it. We should repeal the Constitution and revert back to the Articles of Confederation, which protected individual liberties, while avoiding the trap of strong central government. This would get rid of the Federal government that currently exists, along with its Income Tax, burdensome regulations and welfare state mandates.
We need to do this in all states. When politicians fear the public there is freedom. Freedom is coming.
over ruled, he is still quickly passing jimmy carter as the worst president ever. so i don't give him a pass, as he seems to not be able to pass anything resembling intelligence, so please be seated, and i hope we can reacall the lot of them!
Amen to that!!!
peteee, I agree, no giving Obumble a pass…Afterall, isn't he the
most intelligent president we've had since George Washington?
(At least that's what the media told us, lol, not my opinion)..When
did George Bush get a pass? Obumble was supposed to be the
world's best orator, but when his teleprompter isn't available, he's
umm, ah, huh!!, and says corpse instead of corps……Michelle is no
different, she was tauted as having a "great" education, and she
can't pronounce destroy…she says deshtroy, and struggling to
her is shtruggling.. The media won't say a word will they, so we have
to point these things out…At least those that don't see him as the
mr wonderful will!!
Interesting point. Yes, the state tripped over itself trying to shut down the recall. They should loose this round / get out the way… then the recall committee can take it up with the feds (fight with them) if they win a recall election.
Yes, you're right, no slacking off…It's time to stop
the continuous march to socialism, if not, we'll
let generations of Americans down……
Menendez needs to go down.
The Marxist Rot….House of Kennedy 1962
SEIU, NEA, AFSCME
Take down the Soviet unions and the country will flourish again.
touche.
Quote: Article 1, Section 5 of the US Constitution. That exact wording is as follows:
“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.”
—————————————————————————————–
Thanks Liberty Chick for posting this great and informative article.
My interpretation is that the Constitution allows for each House to expel a member, if they deem it necessary, but that does not "prohibit" the People from recalling a member.
10th Amendment in the Bill of Rights: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Since "recall" is an entirely different process than expelling a member, because it is initiated by The People, then I can't find anything in the Constitution which would prohibit it.
It would be different if we were attempting to "force" the House or Senate to "expel" a member. They have nothing to do with this. This is The People recalling our representative.
I and (I am certain) many all of my fellow citizens in Louisiana will be watching this closely.
Yours in Liberty and Patriotism, ConnieZ
Good grief. This column must have Dan Rather's blood boiling. Breitbart made it perfectly clear that the model still works. And you had made it perfectly clear that Journalism didn't die after all. We can now take the quotation marks away.
The lawyers are doing truly genius works. Legal thrillers…now THAT is sending chills up my thigh.
The "Journalists" and the "DNC Media Complex" have the look of a buggy whip worker as the combustible engine rolled into town. And with that American Horsepower we are going to drive them into the wall of extinction. Good night John Boy
This is great! It’s exactly what conservatives need to do. Use the system against itself…Saul Alinsky would be proud!
The left, and progressives are working feverously to belittle the Tea Party movement, as ignorant rubes, etc. I’ve been to several Tea Party protest, and what I saw were the people that pay the freight. Not a worthless rent-a-mob bellyaching about, “what’s in it for me?” If we can stay unified we will indeed bring real change to establishment Washington, and that’ll be good for every American.
Every state should have the recall option.
It shouldnt be an easy thing to make happen, as in a quick snap of the finger, but if enough people want to recall there elected finger they indeed should be allowed to do so.
I don't see the conflict. “The US Constitution reserves to the US Senate the exclusive power to expel, seat, and determine the qualifications of its own members. Accordingly, NJ has no authority to recall a US Senator despite the provisions of constitution and statutes.”
The US Constitution doesn't say anything about "recalling" a setting senator. All it says is that the US Senate has the exclusive power to expel, seat, and determine the qualifications of its own members. In fact, the U.S. Senate cannot "recall" anyone, only the voters can "recall" an elected official. Therefore, according to the 10th Amendment, the power to "recall" resides with the state or the people.
NJ can mount a recall election and present the winner to the US Senate to be admitted, from there it would be up to the US Senate to unseat and accept the replacement senator or not.
So this was a violation of the First Amendment.
ex animo
davidfarrar
It seems beyond question that the court should require the NJ Secretary of State to certify the petition and allow it to proceed — in accord with the state constitution that official has sworn to uphold. But . . . the recall itself probably will not (and should not prevail), because of that clear language in the U.S. Constitution reserving expulsion power to the Senate and the also-clear and unambiguous constitutional provision giving Senators six-year terms absent any such Senate action. And, given the SCOTUS ruling on state-imposed term limits absent a constitutional amendment, it's just hard to see how a federal court would rule otherwise.
I know all Tea Partiers are not necessarily conservatives, or believers in judicial restraint, but as a lawyer who believes judges should take a constitutionalist or textualist approach to statutory interpretation — instead of one that is results-oriented, no matter how desirable the results — I think advocating a pro-recall ruling (on the larger question) is nothing less than a call for judicial activism.
Precisely.
ex animo
davidfarrar
Mr. Jones if I may I'd like to ask a question, clearly as a lawyer you have a much better understanding of these matters then I possibly could.
But if a case were to unfold where a senator or Representative were to actually be recalled, impeached whatever the term, wouldn't the tenth amendment have a direct bearing on such a case?
I would think that any Senator who even pretended to care that he was representing the people of his state would resign when presented with a certified recall. A vote of No Confidence should be respected regardless of his purported or imagined rights.
What Menendez says by asking for this injunction is that he does NOT respect the will of the people of his state and ipso facto gives the best reason imaginable for recall: Contempt of the Electorate.
Thanks, ConnieZ, you took the words right out of my keyboard
Presenting an Order of Recall does not prevent the Senate from determining whether or not to expel a member.
While it may be politically impossible for the Senate to refuse to vote on the Order of Recall, or to pass it, that is not a matter for the courts to evaluate.
In other words, not only is the question not ripe now, the question may not ever become ripe even with a successful recall.
Senators don't represent *the Senate*, they represent *the people that elected them*.
So while the Senate may reserve the power to determine who is "qualified", and may *expel* it's members, that has nothing to do with a *recall*.
An expulsion is, by definition, done from within. Saying that Congress has the power to expel its members is *almost* redundant: clearly this power was put in the Constitution in order to clarify that Congress has the power, *not* to clarify *who* can do the expelling… Who else but Congress could *expel* its own members.
But expulsion is completely different from recall. As expulsion is done from within, recall is done from without. (It would be nonsensical for Congress to "recall" one of its own members.) The fact that the Constitution is silent on recall does not imply the states or people don't have the power to recall, or that that power is somehow superseded by Congress completely unrelated ability to expel…
For now, the Harvard educated Constitutional Professor and Lecturer, the Honorable President Barack Hussein Obama says, " The constitution means what I say it means." Case closed. Hmmm. Hmmmm.Hmmmm.
There actually is an applicable precedent. Under ERISA, estranged spouses have a right to file QDRO's to demand benefits from their spouse's employer. To do so, they must obtain certain information from the employer. Under the law, employers do not have the right to deny properly structured requests for information, because the law gives them the right to deny such claims AFTER the QDRO is received. They do not have the right to pre-judge a QDRO which they have not yet received. There is plenty of case law to support this.
Carry on, folks. History is not over.
This recall business is nuts. Imagine if the teaparty is successful and gets a senator recalled, or even just forces a recall vote. The left is going to retaliate and all the energy they spend fending of recalls is time that could be spent on more important things… like defending the nation from terrorists.
Expulsion is not recall. And while the recall is usually a blunt instrument (witness the ugly result here in California), is far inferior to a satisfactory election, and it needs to be on very specific charges, it's not so much that it should not succeed as that it probably won't. In fact it might succeed, and even if it doesn't it will be another shot across the bow of the mob in Washington. In fact forcing the sec'y of state to certify the petition and let it go on the ballot will be a big slap in the face of that mob that thinks it owns us.
The only way I can see this happening is when freedom loving states break from the union.
Wldbil: I wrote a longer reply here that didn't seem to upload, but the gist of my response is that I believe the Tenth Amendment doesn't apply here because, while it reserves those powers "not delegated to the United States by the Constitution, nor prohibited by it to the States," this involves powers specifically delegated to the United States, i.e. the Senate.
Both Art. I, Sec. 3, and the Seventeenth Amendment specifically set out Senate terms at six years. Art. I, Sec. 5, states that each house of Congress may "with the Concurrence of two-thirds, expel a Member." Since the Constitution has specifically delegated the means of removing a Senator short of the completion of his six-year term to the Senate itself, the Tenth Amendment should not be read to allow removal by other means as well.
We want our Senator Begich recalled, too! http://www.recallbegich.org
The right to recall Congressional Delegates and to impose term limits on same are current issues for public action and debate. We do not intend to stop with a "recall" petition only. We intend to expand the public scrutiny of Senator Begich and his voting record, and to encourage any and all non-violent action against him in his capacity as a public official and in opposition to the unconstitutional infringements and taxes which he is currently supporting. We are taking a stand. We are saying NO to Mr. Begich in the strongest terms possible. History is full of people who did not complain because someone told them they couldn't, but that is not AMERICAN history!
Mik, these are the rules as defined by the left, attack, attack, attack…what fun right!
first class reporting. thank you.
Alaska's working on it! http://www.recallbegich.org!
I am sure we all want this recall thing to grow some big sturdy legs….however,
If next time, we do a better job of calling,… recalling will be an exercise we will not have to call on.
Thank you Mr. Jones, not the answer I wanted to hear but thank you,none the less.
Alaska's on it! http://www.recallbegich.org!
This site is for "intense debate" Stan. If you don't like my posts then don't respond to them.
NutsnBolts: Recall wasn't unknown to the Framers; the author of the main article notes that it was expressly permitted in the Articles of Confederation. However, they chose not to make a provision for it in the Constitution. Instead, as I mentioned in my response to Wldbil, they made one provision — and only one — for removal of a Member of Congress before his term was completed, and that was the expulsion of the Member by a vote of two-thirds of that house. My larger point is that, given what the Constitution says and doesn't provide for, the argument for recall of Members of Congress is a judicially-activist argument.
I just read the supporting posts. So forgive the second post. This is huge NJ. Nothing would rock the establishment like this. Go get them and that POS who did not stamp the document too.
As though they have done anything before this was discussed? Get real.
ooooouuuu!……..I LIKE IT…….FED JUDGES?….mmmmm……yes yes
good-now we can use this to get rid of boehner, pence, cornyn, mcconnel and all the other repub crooks and liars
why do you teabaggers think you are the majority–most people in new jersey find you all stupid and misled by the lies of fox and beck and hannity –you are the loud mouth minority with no knowledge history ,government etc
Right on!!! I'm going to quote you on http://www.recallbegich.org!
Only one is elected nationally, all others are elected locally!!! If a State can vote to put someone in, the reverse should also be reserved to them!! If they put them in, they should be able to take them out!!!! Recall should be on every ballot!!
Is the Judicial system finally waking up? Are the "Teachings" finally being challenged, by the laws the "Teachers" defy?
This is a lawyers wet dream. Imagine at least one of these cases going on in every state. Remember, if conservatives can use this approach, so can Progs.
Is there no way for his constituents to 'guide' the Senator to embrace opinions more to their liking?
I think a senator SHOULD be easier to recall than a Toyota.
Mike, The NJ's SOS violated the 1st amendment rights of the petitioners (Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances) its does not state you have a right to petition the government unless its to recall a senator, it clearly states you have a right to petetion the government for a redress of grievances.. It sounds like the people of NJ had a grievance with their senator and therfor have a right to petition.. As others have stated the constitution does not give congress a right to recall so under the 10th amendment states/people would keep that right..
If the people of NJ have a problem with their senator they should go to the polls when his term expires and vote for someone else. This isn't about redressing grievances, it is about subverting the will of the voters of NJ and disrupting the political process.
Did you know when our constitution was ratified only New Jersey gave women the right to vote. That's right out of the 13 original states it was legal only in New Jersey for women to vote! Guess which party took that right away some years later? That's right the Democrat party. What does that tell you about the Democrat Party of New Jersey?
Keep the Faith !
' We The People ' will do great things, and cannot be stopped, unless we surrender.
No, that is a terrible idea. Here is the simple constitutional solution. Enforce Article 1 Section 2 you can go to http://www.thirty-thousand.org then abolish the 16th and 17th amendments. Dissolve the Federal Reserve abolish the Dept of Energy, Education, Agriculture, Commerce, Social Security, etc that will save trillions of dollars right there. Go to a simple tax code 25% for unmarried 10% for married have to encourage people to multiply. Ween people off social security by not having the new working generations pay into it, and allow that tax to go directly into an investing instituion of their choice.
Article X…if it is the rule in the State of New Jersey's constitution than it is legal.
So you are that scared? So WHO did some states just elect?
Amazing. We have come to a point in our history where the people can't remove a person they feel is inept because of legalese. I hope Menendez loses this fight.
Big Chris Corzine is at the helm now in the Gov House.
What is the reg on firing the Sec of State (is she elected or appointed by the Gov?)…
If appointed, please flush her and get the right person in their to move this petition forward.
End run around the Corzine Sec of State aka hasta la vista, baby:
TRENTON, N.J. (AP) — New Jersey’s first lieutenant governor is being asked to perform another job in the new administration.
Gov.-elect Chris Christie on Wednesday nominated his No. 2 to also serve as secretary of state.
Kim Guadagno is Christie’s second Cabinet appointment in two days. On Tuesday, he nominated Essex County Prosecutor Paula Dow to be the next attorney general.
Since the voters have to vote to recall, how does recall "subvert" their will?
You have a point about recalls disrupting the politics process. However, I agree with Jefferson that government is best when it governs least; and keeping professional politicians busy fighting off recall petitions seems to me to be a good way to accomplish that.
And since the professional politicians have already done everything they can to both subvert the people's will and disrupt the political process, I have no problem with the people pushing back.
The original intent of the authors of our Constitiution was that the States would appoint our Senators. Debate and political certitude were the determining factors in conforming the US Senate – a "higher house" than the House of Representatives.
Is there some irony here: that the People, now more focused, want a more exact accounting of Senators and their interestss conforming with the best interests of the People as was the original Constitutional intent?
Geez what a concept enforcing the notion that this is Government of the People by the People and for the People.
If the Gods honest truth were truly to be Known. A good number of Congress would be recalled to Prison. Where they belong.
They were expelled not suspended. If you need peer review on this go to the U.S. Senate website. P.S. it was accomplished by 2/3rds vote in favor of expulsion. There were enough non Southerners to form a quorum and expell.
John Galt: However, both are a removal before the expiration of a term of office. Also, the Tenth Amendment requires either a prohibition _or a delegation to the United States_, not just the former. Again, I believe it's fairly significant that _removal power_ has been expressly delegated to the Senate.
Furthermore, you seem to believe that the Tenth Amendment can supersede the Seventeenth Amendment's provision that Senators are elected to six-year terms, with no exceptions given. Since the latter was ratified 122 years later, isn't that proposition backwards?
You might want to read Justice Thomas's excellent defense of the Tenth Amendment in his dissent in the U.S. Term Limits case. In it, by way of example about how states can impose term limits, he makes this point about the Framers' Senate: "Imagine the worst-case scenario: a state legislature, wishing to punish one of the Senators from its State for his vote on some bill, enacts a qualifications law that the Senator does not satisfy. The Senator would still be able to serve out his term; the Constitution provides for senators to be chosen for 6-year terms, Art. I, 3, cl. 1, and a person who has been seated in Congress can be removed only if two-thirds of the Members of his House vote to expel him, 5, cl. 2."
I don't think this issue is as ambiguous as you think it is.
I think that the Socialists in the Obama click is going to bring a hard swing to the right to compensate.
I, for one, hope it happens.
I am tired of welfare queens and Illegals dropping Anchor Babies on MY dime.
it's going to stop. My prediction is by the end of 2013.
Sarah is a SOCIALIST, she redistributes wealth in Alaska, by letting the state control oil production instead of opening it to free market solutions.. She GIVES the people of Alaska money without any contribution.. that's what I call socialism.. do not trust her, she wants to expand that to whole America.. Once she would be the president, she would make all oil sources government owned, and redistribute the profits..
Excuse me?
Do you NOT know what a recall consists of? Those "voters" you are whining about? The recall partition can ONLY be signed by the voters that VOTED in the election!
And YOU say it subverts the will of the voters? Are you really that naive, or just spinning your head like Linda Blair in "the Exorcist"?
Yeah, it's disrupting the political process. THAT'S THE POINT! The "VOTERS" are fed up with an elected politician "subverting" their will. It's not rocket science my friend.
Oh yeah, if you don't like the responses YOU get to your posts, then DON'T POST! That's not rocket science either. And you are DARNED sure not the blog's post content/spelling/grammar police tho apparently YOU think you are! If you can't can't take the criticism, tough!
Identity of ends does not equate to identity of means. A state's recall is not the same as a Senate's expulsion just because both result in removal from office. Since the Constitution provides neither a delagation of recall to the Feds nor a prohibitrion of recall to the states, the 10th Amendment allows the states the power of recall.
If you believe there are no exceptions to the 17th Amendment's provision for 6-year terms, then you clearly also believe the Senate cannot expel a Member. If the 10th cannot trump the 17th, neither can any other Constitutional provision.
Your quote from Thomas is inapt. Imposing qualifications after the fact to limit a Senator's service to his/her current term is not the same as immediate removal from office. If you can cite precedent for the proposition that the 10th Amendment does not apply to the states' ability to perform the latter, please do so, because I'm unaware of any.
And the issue isn't nearly as ambiguous as you think it is, either.
The People voted for this senator in this state.It's not like they all travelled to DC to do this.This is a case of states rights through and through…
Glad some people are taking action for The People. I'm almost ready to give up.
ConnieZ,
I completely agree with your reading. Each Senator or Representative must abide by the rules of their particular body when sent to Washington, are are subject to expulsion if they do not. However, it says nothing about how the states may select who they send.
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State's can't make laws that override the U.S. Constitution. Do it on the ground, in elections. If you can't beat the Dems and Obama that way, the way in which they won, then you don't deserve to win.
Article 1 Section 2 US Constitution The number of Representatives shall not exceed one for every Thirty thousand. So why do we still have only 435 members of congress?
I don't see what the problem is. A recall isn't expelling someone from office, it's simply reversing the election that placed them in office.
This is a joke. The Constitution defines the powers deliniated by the States to the Federal Government. It is intended to limit federal power, not permit the Federal Government to define federal power. Allowing only the Senate to expel a member clearly defines a procedure within the framework of the Federal Government and has no application to the States. It removes any attempt by any other segment of the Federal Government, the President, House of Representatives, or Supreme Court to remove a Senator, It is inconceivable that in an era of strong States' rights that the States would surrender their power to recall a Senator. The fact that recall of Senators is intended to be decided at the State level is clearly shown by the fact that the power to recall a U.S Senator is not granted to the electorate in all the States, leaving that power to each State to decide. Would the people of ANY State give up the right to remove their U.S. Senator if they so chose, and give that power to the Federal Government? Would you? I think not.
Is that why Chris Christy won the governorship in your state?
Hopefully, I understood the article correctly, but for the most part it is about the freedom for the states, and the people. In other words, the people vote the guy in, not the senate, and so the people have the right to make a wrong a right. In fact all states should have that right, not just NJ.
The house and the Senate are voted in by the populous, so in all fairness if you don't like what they are doing then recall them.
It is so much easier said then done though, it should only take about 6 months but already the democratic machine has put the boot to the brake and now we are looking at years and I am sure that the senator will hope that people forgot that he did not listen to his voters.
Actually the Senate would be committing political suicide by not expelling a member who had been recalled by the people of his/her state. It would be a slap in the face of the electorate, putting that Senators own seat at risk.
"Recall" is quite clearly not the same as "expulsion." That the Framers "made no provision" for recall is irrelevant for 10th Amendment purposes. The 10th Amendment requires a PROHIBITION, and the Constitution does not prohibit recall EVEN THOUGH THE FRAMERS WERE AWARE OF THE ISSUE AND COULD HAVE DONE SO HAD THEY WISHED.
And you totally mischaracterize Congress' Constitutional powers to expel. The Constitution does NOT make only one provision for removal of a member of Congress; it makes only one provision for Congress to remove one of its members. That in no way, shape, or form, limits the way in which States can remove their representatives. Absent a stated Constitutional prohibition against such removal, the 10th Amendment grants that power to the States.
She is a socialist because she doesn't endorse theft? Do you advocate oil company theft of the oil that belongs to the citizens of Alaska?
I think the land the oil is under, and the pipeline runs over is in part, state land. not to mention that the fees paid to the state were simply being distributed to the people of the state. Would you prefer that the government simply keep the money?
You seem to be one of those people who believes that the Constitution grants rights, and that if it is in the Constitution, states and the people don't have that right. In fact it's just the opposite, powers not specifically granted to the Feds, are retained by the states and people. Since the Constitution only addresses the issue of expulsion from the Senate, and doesn't address the issue of recall, how would that be overriding the Constitution?
is in the Constitution = isn't in the Constitution
As I stated, I believe that if the recall election goes forward and Menendez loses, the Senate will be forced to expel him/
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