SCOTUS May Have to Decide on Senator Recall Effort

An effort launched last year by a coalition of New Jersey Tea Party groups to recall U.

An effort launched last year by a coalition of New Jersey Tea Party groups to recall U.S. Senator Robert Menendez was halted by the state’s Supreme Court on November 19th. However, a host of constitutional issues pertaining to state and federal law were raised by the ruling, and the lead attorney for recall supporters has pledged to appeal the decision to the U.S. Supreme Court.

While the U.S. Constitution does not provide for the recall of a sitting member of Congress, a 1993 amendment to the New Jersey constitution specifically authorizes the state’s citizens to do so. The amendment is supported by the 1995 Uniform Recall Election Law, passed to provide voters a means to recall officials who break campaign pledges. The first brief filed in September 2009 on behalf of Right2RecallNJ relied heavily on the state amendment and law.

After some legal back-and-forth, the case reached the New Jersey Supreme Court, which ruled 4-2 that the state’s recall amendment was unconstitutional. Andrew Schlafly, the recall proponents’lead attorney and son of conservative pundit Phyllis Schlafly, plans to petition the U.S. Supreme Court early next year to hear an appeal of the state court’s decision and is confident that it will agree. “It was a vigorous dissent with a 4 to 2 decision,” he says.

Perhaps the most powerful piece of evidence presented in favor of the recall effort is a letter, authored by George Washington shortly after the 1787 Philadelphia Constitutional Convention in which Washington states explicitly that the people should have the power to recall congressional representatives.

“The Constitution is silent on this issue,” acknowledges Schlafly. “But recognizing the power of recall would simply be upholding the original meaning and intent of the Constitution.” Schlafly also cites historical trends toward greater voter participation in government and finds it “untenable” that the citizenry does not have the power to impeach their sitting congressional representative, as they do the nation’s president. (Of course, impeachment of the president can only be carried out by the citizenry’s representatives in the U.S. House, which also arguably has the right to impeach senators.)

Will the Supreme Court agree to hear the case? Ben Dworkin, a political science professor at New Jersey’s Ryder University, thinks not, suggesting that years of precedent should prevent the high court from taking the case. If the court did decide to hear the case, Dworkin seriously doubts it would decide in favor of the recall effort. “It would be a particularly activist decision in that it would overturn years of precedent,” he says.

Edward Hartnet, a professor of law at New Jersey’s Seton Hall University, agrees. He says that the merits of the case are dubious and that the biggest surprise in the state Supreme Court ruling was its lack of unanimity. “The idea that there would be an effective power to recall a sitting U.S. Senator is an astonishing idea, and I am quite surprised that two sitting justices appear to endorse the idea,” he says.

According to Hartnet, a key element of the compromise that created a nation out of independent states was the agreement that representatives elected to Congress would not be subject to the whim of state legislators or the electorate while in office.

Noah Rothman is the online editor at C&E. Email him at

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