On Thursday, the New Jersey Supreme Court issued its long-awaited decision in a local Tea Party group’s attempt to recall Senator Robert Menendez (D). In February of this year, a lower court ruled that the Committee to Recall Robert Menendez’s recall petition, which had been rejected by the New Jersey Secretary of State’s office, should be allowed to go forward. In its ruling, the lower court said that the constitutionality of a state law to recall a federal official had never been sufficiently explored.
“There is no express textual answer to this debate in the United States Constitution,” the court unanimously held. “Nor is there any precedent from the United States Supreme Court squarely on point. The briefs and arguments in this appeal do not convince us that we can safely predict what the United States Supreme Court would do if it were presented with the issue. Although many commentators have suggested that such recall measures are, in fact, invalid, such analyses involve debate about the true meaning and intent of the Framers.”
Menendez appealed the decision to the state Supreme Court, and arguments in the case were held in late May. Menendez sought to stop the recall petition on the grounds that a New Jersey state constitutional amendment providing for recall of House and Senate members violates the US Constitution. In a four to two ruling, the state Supreme Court agreed, holding that parts of the state constitutional amendment, ratified by the voters in 1993, and the law implementing it, on the books since 1995, conflicted with the federal constitution and are “without effect.”
Chief Justice Stuart Rabner wrote for the majority. “[T]he text and history of the Federal Constitution, as well as the principles of the democratic system it created, do not allow the states the power to recall U.S. Senators…. The Supremacy Clause of the Federal Constitution provides the backdrop for the Court’s analysis[.] The plain language of the Federal Constitution suggests that a Senator’s term is fixed and that any right to prevent a Senator from completing his or her term is vested in the Senate, not the States.”
The court rejected the Committee’s argument that the US Constitution’s silence on the issue of recall of federal officials triggered the Tenth Amendment’s protection of rights not specifically denied to the States. “There can be no reserved power relating to the election of Members of Congress whose very offices originated with the Constitution,” Rabner wrote.
Attorney Marc Elias, who represented Menendez, said that the court was correct in its reasoning. “We are pleased that the New Jersey Supreme Court decided this case correctly[.] We strongly believe that this is the end of the matter. There is no basis for further review as the U.S. Supreme Court is highly unlikely to take up an appeal of a decision in which the U.S. Constitution was upheld on clearly correct grounds.”
Menendez’s spokesman, Afshin Mohamadi, saw political vindication for the senator in the decision. “It is a resounding victory against the Tea Party’s Washington-based, right-wing corporate backers, who are waging economic war on the middle class,” Mohamadi said. “Bob Menendez was their number-one target because they want to silence the most effective voices speaking out in defense of the middle class against powerful interests that are stacking the deck against New Jersey’s hard working families, like Big Oil, Big Insurance, and corporate polluters.”
In their dissent, Justices Roberto-Rivera Soto and Helen Hoens criticized the majority’s opinion, calling it a rush to judgment. “[I]n light of the enormous number of signatures that our [state] Constitution and statute require in order to trigger a recall, the question of whether Sen. Menendez in fact will be subject to recall is, at best, rank speculation. Second, in order to reach its result, the majority considers a constitutional issue that is unnecessary for disposition of this case. Finally, declaring unconstitutional a provision of our State Constitution and its implementing legislation clearly and directly frustrates the expressed will of the people of New Jersey,” the justices wrote.
In an exclusive to HUMAN EVENTS, Andrew Schlafly, who argued the case on behalf of the Committee to Recall Robert Menendez, called the dissent “compelling” and said that the case would be appealed to the US Supreme Court “on the grounds that the New Jersey Supreme Court majority misinterpreted the US Constitution to deprive the people of their power with respect to federal officials.”
“The people never gave up their sovereign power to recall elected federal officials, and there is no reason why the people would abdicate this responsibility. Otherwise a candidate can say one thing to get elected, but then say and do the opposite beginning the day after he is elected, without his constituents’ being able to do anything to prevent this. The Constitution does not require such an illogical result,” Schlafly said.
Schlafly also took issue with the state Supreme Court’s application of U.S. Term Limits, Inc. v. Thornton as a basis for its conclusion that the power of recall could not be reserved to the states under the Tenth Amendment. Schlafly disagreed with Elias, saying that the Court’s reading of Thornton made it more likely that the US Supreme Court would take up the recall issue.
“Thornton affirmed the power of the people to re-elect the same person again and again, and struck down a blanket limitation [term limits] on that power. Recall, however, is the opposite approach: It represents the power of the people to remove a particularly bad apple from office. Thornton tends to support the sovereignty of the people, not limit it,” he said.
Speaking on behalf of the Committee to Recall Robert Menendez, Rose Anne Salinitri said that the group’s appeal would be “an opportunity to open the doors of recall for the entire nation.” The case was being watched nationwide, as New Jersey is one of 18 states that have constitutions granting voters the right to recall elected federal officials. More than a dozen conservative groups, including the American Civil Rights Union, the Conservative Legal Defense and Education Fund, and the Gun Owners Foundation, filed amicus briefs in support of the recall petition.
It is far from certain whether the US Supreme Court will agree to hear the case. However, the current level of anger at elected officials almost guarantees that more recall petitions will be attempted. With no direct ruling on the issue, eventually that Court may be compelled to step in.