Is it Constitutional to Recall a U.S. Senator?

by P.A. Madison on November 18th, 2010

The New Jersey Committee to Recall Robert Menendez v. Nina Wells addressed the question whether it is proper to recall a siting U.S. Senator by holding:

The matter is ripe for adjudication and the 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. Those portions of the UREL and the State Constitution which authorize the recall of U.S. Senators are unconstitutional.

Personally I can’t find any constitutional objections since a recall simply creates a “vacancy” to be filled per State law and the Seventeenth Amendment does not prohibit recalls or expulsions. The argument a Senator is elected for a six-year term, and thus, must serve it completely isn’t very persuasive since a term length only defines the duration of the term and not a unconditional personal entitlement for a Senator to serve an entire six-year term uninterrupted regardless of resignation or bad acts.

The Seventeenth Amendment does not say anything about “resignations” but who will doubt a Senator is free to resign before his term expires? Hamilton in his speech on his ideas for a new government listed three events that could create a Senate vacancy; death, resignation and removal from office.

I think a Tenth Amendment argument for the validity of a recall carries more weight in supporting a recall then arguments of it being unconstitutional.


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