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

The citizens' committee seeking to recall Senator Robert Menendez (D-NJ) is trying to do something that no State has ever done before. Some say that such recalls are not allowed. But those looking for Constitutional authority will not find it in the US Constitution itself.

Opponents of the recall effort mention a legislative opinion written by Jack Maskell, a "legislative attorney" with the American Law Division of the Congressional Research Service. In 2003, Maskell said flatly that the US Constitution does not authorize, or even permit, a State to recall a member of its Congressional delegation. In that opinion, Maskell admitted that he could not cite a direct Supreme Court precedent. But he did find three Supreme Court cases that touched on the matter of State qualifications for election to federal office. The two most relevant are US Term Limits v. Thornton and Cook v. Gralike (which Maskell misspelled "Gralick" in his opinion).

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

The parts of the Constitution that address the election of Senators are these:

1. Senators are elected by the people of each State, and specifically by people qualified to vote for members of the "most numerous branch" of the State legislature. (Amendment XVII.)
2. No one can be a Senator who is not thirty years old or older, has not been a US citizen for nine years or more, and who does not, when elected, live in the State from which he is elected. (Article I, Section 3, Clause 3.)
3. Each State's legislature determines the "time, place and manner" of elections of Senators and Representatives. (Article I, Section 4, Clause 1.)
4. Each House of Congress is the sole judge of the "elections, returns and qualifications" of its own membership (Article I, Section 5, Clause 1), and may expel a member with a two-thirds vote (Article I, Section 5, Clause 2).

In addition, Amendment X says that any powers that the Constitution does not delegate to the federal government, or forbid the States to exercise, the States, or the people, retain. And because the Constitution never specifically says, "No State shall recall its delegation to Congress, or any member thereof," the States retain that power of recall, a power that eighteen States, including New Jersey, specifically claim.

A Senator or Representative is an agent. Agents serve at the pleasure of their principals, not of the other entities to whom or in whom they represent their principals. The key point is that Senators and Representatives are not federal officers at all, but are State officers, acting on behalf of their States and serving at their pleasure. A direct Constitutional challenge on that point would be welcome--and might indeed come.

This is the second 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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