Recall of Legislators and the Removal of Members of Congress from Office
In a similar manner, the attorney general of Louisiana ruled in 2009 that a Member of Congress representing the people of a congressional district in Louisiana could not be recalled under Louisiana law. The attorney general found that the “Constitution does not provide for, nor does it authorize, the recall of United States officials,” that the power to remove a Member of Congress before the expiration of the Member’s term is expressly delegated in the “United States Constitution to the respective House of Congress …,” and thus “the United States Constitution does not provide for any reservation of authority to the States to remove from office congressional officeholders.”[1] The opinion further found that Members of Congress are federal officials, and are not state officers, and thus are not subject to the state law on recall of state public officials.
The attorney general of North Dakota ruled in 2010, in an opinion upheld by the North Dakota supreme court, that “neither the Constitution nor laws of the State of North Dakota allow for the recall of a congressional officer, specifically a United States Senator.”[2] Also in 2010, the attorney general of Arkansas advised that a proposed recall amendment “as it applies to Members of Congress is unconstitutional because a state statute cannot alter the terms or qualifications for Members of Congress.”[3]
It may be noted that in one instance in the 1970s an attorney general of a state declined to find that a state administrative agency is barred from accepting a recall petition directed at a Member of Congress. In interpreting a state recall statute, the attorney general of Wisconsin noted in an opinion on May 3, 1979, that an administrative agency, the state election board, upon presentation of a valid petition to recall a Member of Congress under the Wisconsin constitution, had no authority, in itself, to adjudicate and reject such petition without a ruling from a court.[4]
When such matters have on rare occasions generated a ruling from a court, however, the courts which have decided the issue have thus far found that state recall laws are ineffective to override and substitute for the provisions of the U.S. Constitution concerning the terms of and removal of federal officials such as Members of Congress. A federal court in 1967, for example, dismissed a suit which attempted to compel the Idaho secretary of state to accept petitions recalling Senator Frank Church of Idaho. In the unreported judicial ruling, the court found that Senators are not subject to state recall statutes, and that such a state provision is inconsistent with the provisions of the U.S. Constitution.[5]
- ↑ State of Louisiana, Department of Justice, Opinion 09-0051, at 1, 3 (March 2, 2009).
- ↑ North Dakota, Attorney General, Letter Opinion 2010-L-08, at 1, May 13, 2010. The attorney general’s opinion was confirmed by the Supreme Court of North Dakota in RECALLND v. Jaegler, Secretary of State, 792 N.W.2d 511 (N.D. Supreme Court, December 21 2010).
- ↑ Op. Att’y. Gen. Ark. 2010-017, 2010 Ark. AG LEXIS 24, at 9 (March 3, 2010). The attorney general noted in this opinion that “this office will not address the constitutionality of proposed measures in the context of a ballot title review unless the measure is ‘clearly contrary to law.’” Id. at 3.
- ↑ 68 Opinions of the Attorney General 140, 146, 148 (Wisconsin 1979): “In the foregoing discussion I have attempted neither a resolution nor a comprehensive analysis of the constitutional issue. Enough has been said, however, to show that the question of constitutionality is one that is arguable and open to debate. The Wisconsin Supreme Court has provided guidance to administrative bodies called upon to perform their ministerial duties under circumstances raising doubts as to the constitutional validity of the result. … Accordingly, in the event petitions for the recall of a United States senator are presented to the Elections Board, you should proceed to carry put your responsibilities … unless and until directed otherwise by a court of law.”
- ↑ U.S. Judge Rejects Plea Asking Recall of Senator Church, N.Y. Times, October 1, 1967, at p. 47, col. 1; Recall Barred, Wash. Post, September 30, 1967, at A5.
