States’ Right to Recall

One side called him, “One of those ambitious politicians!” “A Party Scavenger,” a “popularity seeker,” and urged him to “Return to thy Country! Assist not in its destruction! Consider the consequences!” The other side called him “a fair and honorable man,” an “independent” man, “the greatest ornament and the ablest member of the American Senate, who if he but persists in his dignified course must one day attain to the highest station in our republic.” Of course, I’m referring to John Quincy Adams, the senator from Massachusetts in 1808, who effectively was recalled from office for voting against his political party, the Federalists.

As Congress grows increasingly out of touch with the people who elect them, states need to assert the right to recall all of their elected officials, including United States senators.

“We, the People” established this country and delegated limited powers to the federal government. It is time for states to exercise their 10th Amendment rights and limit the power of the federal government. One important way to do that is through recalling U.S. senators who vote against their constituents during their lengthy terms. While no member of Congress has ever been recalled from office, that doesn’t mean reforms aren’t necessary—especially when it comes to the Senate.

Thirty-nine states have provisions allowing for the recall of some elected officials. The traditional view of federal recalls has been that the Constitution mentions “Expulsion of a Member of Congress” in Article I, section 5, clause 2 and the courts have deferred to the congressional practice of letting Congress decide how expulsion works.

There is a case to be made, however, for the removal of senators via recall (which is different from an expulsion). The Constitution is silent on the question of recall. Under the Articles of Confederation of 1777, states had the right to recall delegates. At the Constitutional Convention a decade later, the Virginia Plan included a recall provision. Ultimately, the Framers chose not to include one. Importantly, they allowed for states’ to exert some control over Congress through the selection of U.S. senators and reserved powers to the states in the 10th Amendment.

In 1808, the Massachusetts state legislature began a process to recall John Quincy Adams (electing his successor sixth months earlier than they would usually elect someone). Rather than submit to this tempest, however, Adams ultimately resigned from his seat. As described in John Quincy Adams and the Foundations of American Foreign Policy, “[i]n effect the legislature of Massachusetts had ‘recalled him.’”

When the 17th Amendment was ratified in 1913, state legislatures lost their power to select senators, something the Founders did not envision. The amendment took away states’ rights and the power of the people to alter the terms for Members of Congress in a way that previously had been possible.

Several states have recall provisions in their state constitutions, with some of them being broad enough to include U.S. senators. Article XIII, section 12 of Wisconsin’s constitution, for example, says the people “of any congressional, judicial, or legislative district may petition for the recall of any incumbent elective officer” (emphasis added). Article II, section 8 of Michigan’s constitution states: “[l]aws shall be enacted to provide for the recall of all elective officers” (emphasis added).

Nevertheless, the courts have been reluctant to let states recall elected federal officials, pointing to the Constitution’s expulsion clause. For instance, a Michigan county circuit court, in 2007 ruled that the recall of a member of Congress proceed for that reason. This decision was not appealed.

While several state courts and administrative proceedings have ruled against congressional recalls, a Wisconsin attorney general’s opinion in 1979 advised the state elections board that it should not prohibit a congressional recall from proceeding. The attorney general concluded “removal by recall does not on its face conflict with Congress’ power of expulsion.”

The American Civil Rights Union made powerful arguments for a congressional recall in an amicus curiae brief in a case involving the prospective recall of Senator Robert Menendez (D-N.J.). In it, the ACRU’s former general counsel, Peter Ferrara noted that:

If a state wants to adopt a recall election process effectively providing the right and opportunity for citizens to make a political statement regarding their elected federal representatives, there is nothing in the U.S. Constitution that prevents it from doing so. A state is not limited to holding elections only on subjects approved by the federal government.

States wishing to assert their right to recall U.S. senators could amend their state constitutions to create a recall process. With the U.S. Constitution silent on the matter, a state constitution would not be in conflict with it, but it would create a major constitutional fight in the courts. Special interest groups and lobbyists with too much sway in D.C. would spend millions trying to halt recall efforts through litigation and other measures.

Yet “We the people” should prevail over the powerful. The right to recall can be enacted and states should take the lead to regain power over the swamp.

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Author: Matt Batzel


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