Senators Menendez (right) and Lautenberg
(AP Photo/Mel Evans)

The federal case law relevant to recalling a United States Senator is very thin, and no case addresses this directly. Opponents of recalling a Senator point to two cases above all, that seem to say that no State may change the federal constitutional qualifications for Congressional service, nor add to them. But that reading is hardly incontrovertible--and a close reading shows that the cases involved might be distinguishable from an actual recall question.

At issue is an attempt to recall Senator Robert Menendez (D-NJ) from office. No State has ever done this. Opponents cite two Supreme Court decisions from the 1990s and the decade just passed to suggest that the Court has "tested" the proposition and disallowed it. These cases are US Term Limits, Inc. v. Thornton and Cook v. Gralike. Of these, Cook is not especially relevant, because it spoke of pejorative language placed on a ballot, which the Menendez recall committee is not proposing.

Richard T. Luzzi, attorney for the Committee
to Recall Robert Menendez (from the
Independence Caucus, used by permission)

In US Term Limits, the Court held that no State may "alter or add to" the basic qualification for being a Senator or Representative. Indeed, even the House or Senate may not do this. (Powell v. McCormack, 395 us 486, 540). The Court essentially held that what neither House nor Senate may do, no State may do--and the Tenth Amendment (the Reserved Powers amendment) could not grant to a State the power to affect the qualifications for offices that did not exist before the Constitution was adopted.

Justice John Paul Stevens delivered the opinion, in which Justices Anthony Kennedy (no kin), David Souter, Ruth Bader Ginsburg, and Stephen Breyer joined. The other four Justices at the time (William Rehnquist, Clarence Thomas, Antonin Scalia, and Sandra Day O'Connor) dissented. In his dissent, Thomas said that the Constitution is silent on the issue of added qualifications--and silence, according to Thomas, does not equal prohibition. Prohibition must be explicit--and as this Examiner has noted, explicit prohibition is not to be found.

Concerning the concept of "reserved powers," Thomas ringingly asserted that the power to choose one's representatives came from the people, not the States, as a matter of "fundamental principle"--and that the Tenth Amendment did indeed "reserve" that power to the people.

In his concurring opinion, Kennedy held that term limits somehow penalized the voters by forbidding them to elect and re-elect and re-re-elect a sitting Senator or Representative as often as they were pleased with his service. And this is the key distinction that a skillful constitutional lawyer might make, to sway Kennedy's vote: the very success of a recall petition indicates that the voters are not pleased with their current representation in the Senate and seek to change it.

Furthermore, the Court's opinion in Citizens United v. FEC clearly indicates that the present Court is quite willing to overturn previous precedent if it finds it in error.

This is the third in a series of articles on the Constitutional questions raised by a movement to recall a sitting Senator, and is also part of the Robert Menendez series.

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