Recall of Legislators and the Removal of Members of Congress from Office

Recall of Legislators and the
Removal of Members of Congress from Office
Updated January 7, 2008
Jack Maskell
Legislative Attorney
American Law Division



Recall of Legislators and the Removal of Members of
Congress from Office
Summary
Under the United States Constitution and congressional practice, Members of
Congress may have their services ended prior to the normal expiration of their
constitutionally established terms of office by their resignation or death, or by action
of the House of Congress in which they are a Member by way of an “expulsion,” or
by a finding that in accepting a subsequent public office deemed to be “incompatible”
with congressional office, the Member has vacated his congressional seat.
Under Article I, Section 5, clause 2, of the Constitution, a Member of Congress
may be removed from office before the normal expiration of his or her constitutional
term by an “expulsion” from the Senate (if a Senator) or from the House of
Representatives (if a Representative) upon a formal vote on a resolution agreed to by
two-thirds of the Members of the respective body present and voting. While there
are no specific grounds for an expulsion expressed in the Constitution, expulsion
actions in both the House and the Senate have generally concerned cases of perceived
disloyalty to the United States, or the conviction of a criminal statutory offense which
involved abuse of one’s official position. Each House has broad authority as to the
grounds, nature, timing, and procedure for an expulsion of a Member. However,
policy considerations, as opposed to questions of authority, have appeared to restrain
the Senate and House in the exercise of expulsion when it might be considered as
infringing on the electoral process, such as when the electorate knew of the past
misconduct under consideration and still elected or re-elected the Member.
As to removal by recall, the United States Constitution does not provide for nor
authorize the recall of United States officers such as Senators, Representatives, or the
President or Vice President, and thus no Member of Congress has ever been recalled
in the history of the United States. The recall of Members was considered during the
time of the drafting of the federal Constitution in 1787, but no such provisions were
included in the final version sent to the states for ratification, and the specific drafting
and ratifying debates indicate an express understanding of the Framers and ratifiers
that no right or power to recall a Senator or Representative from the United States
Congress exists under the Constitution. Although the Supreme Court has not needed
to directly address the subject of recall of Members of Congress, other Supreme
Court decisions, as well as the weight of other judicial and administrative decisions,
rulings and opinions, indicate that (1) the right to remove a Member of Congress
before the expiration of his or her constitutionally established term of office is one
which resides exclusively in each House of Congress as expressly delegated in the
expulsion clause of the United States Constitution, and (2) the length and number of
the terms of office for federal officials, established and agreed upon by the states in
the Constitution creating that Federal Government, may not be unilaterally changed
by an individual state, such as through the enactment of a recall provision or a term
limitation for a United States Senator or Representative. Under Supreme Court
constitutional interpretation, since individual states never had the original sovereign
authority to unilaterally change the terms and conditions of service of federal
officials agreed to and established in the Constitution, such a power could not be
“reserved” under the 10th Amendment.



Contents
Expulsion ....................................................1
R ecal l .......................................................5
Constitutional History......................................5
Judicial Decisions.........................................7
Constitutional Amendment; Pro and Con......................11



Recall of Legislators and the Removal of
Members of Congress from Office
This report discusses briefly the manner in which a Member of Congress may
be removed from office by “expulsion,” and then examines the issue of “recall” of
legislators.
The term of office established in the United States Constitution for a United
States Senator is six years, and for a Representative in Congress, two years.1 Under
the Constitution and congressional practice, Members of Congress may have their
services ended prior to the normal expiration of their constitutional terms of office
by their resignation, death, or by action of the House of Congress in which they sit
by way of an expulsion,2 or by a finding that a subsequent public office accepted by
a Member is “incompatible” with congressional office and that the Member has
consequently vacated his seat in Congress.3 As noted in the rules and manual of the
House of Representatives with respect to the way in which vacancies may be brought
about: “Vacancies are caused by death, resignation, declination, withdrawal, or action
of the House in declaring a vacancy as existing or causing one by expulsion.”4
Although considered in the Federal Convention of 1787, there was never a
provision adopted in the United States Constitution for the “recall” of elected federal
officials, such as Members of Congress, and thus no Member of the Senate or the
House of Representatives has ever been recalled in the history of the United States.
As noted by the United States Supreme Court, individual states never possessed the
original sovereign authority, and thus could not have “reserved” such power under
the 10th Amendment, to unilaterally change the terms, qualifications, and conditions
of service of federal officials created in the United States Constitution.5
Expulsion
Members of Congress may be involuntarily removed from office before the
normal expiration of their constitutional terms by an “expulsion” from the Senate (if


1 U.S. CONST., art. I, § 3, and amend. XVII, cl. 1 (Senators); art. I, § 2 (Representatives).
2 U.S. CONST., art. I, § 5, cl. 2.
3 See discussion in Deschler’s Precedents of the U. S. House of Representatives, Vol. 2, ch.

7, § 13 (1977), and VI Cannon’s Precedents of the House of Representatives, § 65 (1935);


note, e.g., U.S. CONST., art. I, § 6.
4 Constitution, Jefferson’s Manual, and Rules of the House of Representatives, 109th
Congress, H.Doc. 108-241, at § 17 (2005).
5 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 800-805 (1995); Cook v. Gralike, 531
U.S. 510, 522-523 (2001); Justice Joseph Story, Commentaries on the Constitution, Vol. I,
§ 627 (1883).

a Senator) or from the House of Representatives (if a Representative) upon a formal
vote on a resolution agreed to by two-thirds of the membership of the respective body
who are present and voting.6 The United States Constitution expressly provides at
Article I, Section 5, clause 2, that: “Each House may determine the Rules of its
Proceedings, punish its Members for disorderly Behaviour, and, with the
Concurrence of two-thirds, expel a Member.”
An expulsion is a process, often considered inherent in parliamentary bodies,
which is characterized as a self-disciplinary action necessary to protect the integrity
of the institution and its proceedings.7 An expulsion is different from an “exclusion.”
An “exclusion” is not a disciplinary matter against a current Member, but rather a
decision not to seat a Member-elect, by a simple majority vote of the House or
Senate, upon a finding that the Member-elect is not entitled to a seat either because
of a failure to meet the constitutional qualifications for office (age, citizenship and
inhabitancy in the State), or that the Member-elect was not “duly elected.”8
Members of Congress are not removed by way of an “impeachment” procedure
in the legislature, as are executive and judicial officers, but are subject to the more
simplified legislative process of expulsion.9 A removal through an impeachment
requires the action of both Houses of Congress — impeachment in the House and
trial and conviction in the Senate; while an expulsion is accomplished merely by the
House or Senate acting alone concerning one of its own Members, and without the
constitutional requirement of trial and conviction.
An expulsion from the Senate or the House of Representatives is considered the
most severe form of congressional self-discipline. While there are no specific
grounds for an expulsion expressed in the Constitution, expulsion actions in both the
House and the Senate have generally concerned cases of perceived disloyalty to the
United States Government, or the conviction of a criminal statutory offense which
involved abuse of one’s official position.10 In the United States Senate, 15 Senators


6 Brown and Johnson, House Practice, 108th Cong., 1st Sess., ch. 58, “Voting,” at § 28, pp.

935-936 (2003).


7 Cushing, Elements of the Law and Practice of Legislative Assemblies in the United States,
Sections 683-684, at 268-269 (Boston 1856); note also Hiss v. Bartlett, 68 Mass. 468 (1855).
8 Powell v. McCormack, 395 U.S. 486 (1969). There is also a “disqualification” provision
in the 14th Amendment, § 3, where one may be “disqualified” from holding congressional
office for engaging in insurrection or rebellion against the United States or giving aid or
comfort to our enemies after having taken an oath to support the Constitution. This
provision might be used to “exclude,” that is, not to seat a person elected to Congress for
failing to meet the qualifications (see discussion concerning House “exclusions” andth
disqualifications, presumptively on 14 Amendment grounds, of socialist and pacifist Victor
Berger of Wisconsin in 1919, and again in 1920, VI Cannon’s Precedents, §§56-59; also
Powell v. McCormack, 395 U.S. at 545, n.83 (1969)). Removal of a Member on such
grounds would still appear to require the specific action of the relevant House of Congress.
9 See case of Senator William Blount (Tenn.), expelled July 8, 1797, found not subject to
impeachment. III Hinds’ Precedents of the House of Representatives, §§ 2294-2318 (1907).
10 In addition to actual expulsions, note House Committee on Standards of Official
(continued...)

have been expelled, 14 during the Civil War period for disloyalty to the Union (one
expulsion was later revoked by the Senate),11 and one Senator was expelled in 1797
for other disloyal conduct.12 In the House of Representatives, five Members have
been expelled, including three during the Civil War period for disloyalty to the
Union.13 Two other House Members have been expelled, one in 1980 after
conviction of conspiracy and bribery in office, and the other Member in 2002 after
conviction for conspiracy to commit bribery, receiving illegal gratuities, fraud against
the Government in receiving “kickbacks” from staff, and obstruction of justice.14
Although actual expulsions from Congress are fairly rare, it should be noted that
several Members of Congress have chosen to resign from office rather than face what
was apparently perceived as an inevitable congressional expulsion.15


10 (...continued)
Conduct’s recommendations for expulsion of a Member for bribery in “Abscam” matterthst
(H.Rept. 97-110, 97 Cong., 1 Sess. (1981)), and of another Member after conviction for
receipt of illegal gratuities, Travel Act violations and obstruction of justice (H.Rept. 100-th

506, 100 Cong., 2d Sess. (1988)). See also Senate Select Committee on Ethicsthst


recommendation in S.Rept. 97-187, 97 Cong., 1 Sess. (1981), after Senator’s conviction
in “Abscam” matter. It should be noted, however, that the Senate Select Committee on
Ethics recommended the expulsion of a Senator in 1995 who was not convicted of any
crime, but who was found by the Committee to have abused the authority of his office in
making unwanted sexual advances to women, enhancing his personal financial position, andth
for obstructing and impeding the Committee’s investigation. S.Rept. 104-137, 104 Cong.,st

1 Sess. (1995).


11 Note expulsions of Senators Mason, Hunter, Clingman, Bragg, Chestnut, Nicholson,
Sebastian, Mitchell, Hemphill, and Wigfall (1861), Breckinridge (1861), Bright (1862),
Johnson (1862), and Polk (1862). The expulsion order regarding Senator Sebastian was
later revoked. United States Senate Election, Expulsion and Censure Cases, 1793-1990, S.st
Doc. 103-33, 103d Cong., 1 Sess., at pp. 95-108, Cases 36, 38, 39, 40 (1995).
12 Senator William Blount of Tennessee, July 8, 1797, United States Senate Election,
Expulsion and Censure Cases, 1793-1990, supra at 13-15, Case 5.
13 Representative-elect John B. Clark of Missouri (1861), Representative John W. Reid of
Missouri (1861), and Representative Henry C. Burnett of Kentucky (1861). II Hinds’
Precedents, supra at §§ 1261,1262; House of Representatives Exclusion, Censure andst
Expulsion Cases, Comm. Prt., 93rd Cong. 1 Sess. at 143-144 (1973).
14 H.Rept. 96-1387, 96th Cong., 2d Sess., In the Matter of Representative Michael J. Myers
(1980), 126 Congressional Record 28,978 (October 2, 1980); H.Rept. 107-594, 107th Cong.,

2d Sess., In the Matter of Representative James A. Traficant, Jr. (2002), and H.Res. 495,th


107 Cong., 148 Congressional Record 14318-14319 (July 24, 2002).


15 In Senate see, e.g., S.Rept. 97-187, supra, (Senator resigned in 1982 prior to final Senate
floor consideration, Riddick and Fruman, Riddick’s Senate Procedure, S. Doc. 101-28, at
270 (1992)); and 1995 resignation of Senator after Committee recommendation of expulsion
in S.Rept. 104-137, supra. In the House, note resignations of two Representatives, one in

1981 and one in 1988 after Committee recommendations of expulsion in H.Rept. 97-110,


supra, and H.Rept. 100-506, supra; case of Rep. B.F. Whittemore, recommended for
expulsion by Military Affairs Committee for sale of Military Academy appointments, who
subsequently resigned in 1870, and who was then censured in abstentia by the House (II
Hinds’ Precedents, supra at § 1273); and House censure of John DeWeese after his
resignation (also for the sale of Academy appointments), but before the committee reported
(continued...)

The authority within the Constitution of each House of Congress to expel one
of its own Members is unrestricted on the face of the constitutional language, except
as to the requirement for a two-thirds approval. Although such authority appears to
be extensive as to the grounds, nature, timing, and the procedure for the expulsion
of a Member,16 policy considerations, as opposed to questions of power or authority,
may have generally restrained the Senate and the House in the exercise of their
authority to expel. Such restraint has been particularly evident when the conduct
complained of occurred prior to the time the Member was in Congress,17 or occurred
in a prior Congress, when the electorate knew of the conduct and still elected or re-
elected the Member.18 The apparent reticence of the Senate or House to expel a
Member for past misconduct after the Member has been duly elected or re-elected by
the electorate, with knowledge of the Member’s conduct, appears to reflect in some
part the deference traditionally paid in our heritage to the popular will and election
choice of the people.19 In 1914, the Judiciary Committee of the House detailed
various policy considerations in expulsions for past misconduct:
In the judgment of your committee, the power of the House to expel or punish by
censure a Member for misconduct occurring before his election or in a preceding
or former Congress is sustained by the practice of the House, sanctioned by
reason and sound policy and in extreme cases is absolutely essential to enable the
House to exclude from its deliberations and councils notoriously corrupt men,
who have unexpectedly and suddenly dishonored themselves ....
But in considering this question and in arriving at the conclusions we have
reached, we would not have you unmindful of the fact that we have been dealing
with the question merely as one of power, and it should not be confused with the
question of policy also involved. As a matter of sound policy, this extraordinary
prerogative of the House, in our judgment, should be exercised only in extreme
cases and always with great caution and after due circumspection, and should be
invoked with greatest caution where the acts of misconduct complained of had
become public previous to and were generally known at the time of the member’s
election. To exercise such power in that instance the House might abuse its high


15 (...continued)
the resolution of expulsion. II Hinds’ Precedents, supra at § 1239. See also expulsion
resolutions, reported from an ad hoc committee, for bribery, and subsequent resignations
during House consideration of resolutions, by Representatives William Gilbert, Frances
Edwards, and Orasmus Matteson, in 1857 (II Hinds’ Precedents, supra at § 1275).
16 In re Chapman, 166 U.S. 661, 669-670 (1897); United States v. Brewster, 408 U.S. 501,

519 (1972); Story, Commentaries on the Constitution, Vol. II, § 836 (1883).


17 H.Rept. 94-1477, 94th Cong., 2d Sess. 2 (1976), where House Committee on Standards of
Official Conduct recommended against expulsion since Member’s conviction “while
reflecting on his moral turpitude, does not relate to his official conduct while a Member of
Congress.”
18 Note discussion in S.Rept. 2508, 83rd Cong., 2d Sess. 20-23, 30-31 (1954), concerning
McCarthy censure; and H.Rept. 27, 90th Cong., 1st Sess. 26-27 (1969).
19 Powell v. McCormack, supra at 508, 509; Alexander Hamilton, II Eliot’s Debates 257;
note II Hinds’ Precedents § 1285, p. 850-852, discussion of jurisdiction of House after re-
election of Member when the “charges against [the Member] were known to the people of
his district before they reelected him.”

prerogative, and in our opinion might exceed the just limitations of its
constitutional authority by seeking to substitute its standards and ideals for the
standards and ideals of the constituency of the member who had deliberately
chosen him to be their Representative. The effect of such a policy would tend20
not to preserve but to undermine and destroy representative government.
The authority to expel has thus been used cautiously, particularly when the institution
of Congress might be seen as usurping or supplanting its own institutional judgment
for that of the electorate as to the character or fitness for office of someone the people
have chosen to represent them in Congress.21
Recall
In some states, state legislators and other state or local elected officials may be
removed from office before the expiration of their established terms not only by
action of the legislature itself through an expulsion (or for executive officers, through
an “impeachment” and conviction by the legislature), but also by the voters through
a “recall” election procedure. While an expulsion is an internal authority of
legislative bodies incident to their general powers over their own proceedings and
members, recall is a special process outside of the legislature itself, exercised by the
people through a special election. Recall provisions for state or local officers became
popular in the “progressive movement,” particularly in the western and plains states,
in the early part of the 20th Century.22
Constitutional History.
The United States Constitution does not provide for nor authorize the recall of
United States officials such as United States Senators, Representatives to Congress,
or the President or Vice President of the United States, and thus no United States
Senator or Member of the House of Representatives has ever been recalled in the
history of the United States. As early as 1807, a Senate committee examining the
question of the Senate’s duty and broad authority to expel a Member, noted that such
duty devolves to the Senate not only because of the express constitutional grant of
authority, but also as a practical matter because the Constitution does not allow for
a “recall” of elected Members of Congress by the people or the state. The committee
noted specifically that the Constitution had set out numerous provisions,
qualifications and requirements for Members of Congress to prevent conflicts of
interest and to assure a certain degree of fealty to constituents, but did not give a
Member’s constituency the authority to recall such a Member:


20 Report of the House Judiciary Committee, H.Rept. 570, 63rd Cong., 2d Sess. (1914), VI
Cannon’s Precedents of the House of Representatives, § 398, 557-558.
21 “Congress has demonstrated a clear reluctance to expel when to do so would impinge ...
on the electoral process.” Bowman and Bowman, “Article I, Section 5: Congress’ Power
to Expel — An Exercise in Self-Restraint,” 29 Syracuse Law Review 1071, 1101 (1978).
22 G. Theodore Mitau, State and Local Government, Politics and Processes, 90 -93 (Charles
Scribner’s Sons 1966); Comment, “The Use and Abuse of Recall: A Proposal for Legislative
Recall Reform,” 67 Nebraska Law Review 617, 621-625 (1988).

The spirit of the Constitution is, perhaps, in no respect more remarkable
than in the solicitude which it has manifested to secure the purity of the
Legislature by that of the elements of its composition .... Yet, in the midst of all
this anxious providence of legislative virtue, it has not authorized the constituent23
body to recall in any case its representative.
The recall of United States Senators or Representatives had been considered
during the time of the drafting of the federal Constitution, but recall provisions were
rejected and were not included in the final version of the Constitution sent to the
states for ratification.24 The ratifying process in the states evidences debate over this
lack of inclusion of a recall provision. Luther Martin of Maryland, for example, in
an address delivered to the Maryland Legislature, criticized the proposed Constitution
because the Members of Congress “are to pay themselves, out of the treasury of the
United States; and are not liable to be recalled during the period for which they are
chosen.”25 In New York, an amendment was defeated in the 1788 ratifying
convention which would have allowed the state legislatures to “recall their Senators
... and elect others in their stead.”26 In the ratifying debates in Virginia, George
Mason commented: “The Senators are chosen for six years. They are not recallable
for those six years, and are re-eligible at the end of the six years. .... They cannot be
recalled in all that time for any misconduct.”27
This history indicates an understanding of the Framers and ratifiers of the
Constitution that no right or power to recall a Senator or Representative from the
United States Congress existed under the Constitution as ratified. As noted by an
academic authority on the mechanisms of “direct democracy”:
The Constitutional Convention of 1787 considered but eventually rejected
resolutions calling for this same type of recall [recall of Senators by the state
legislatures as provided in the Articles of Confederation]. ... In the end, the idea
of placing a recall provision in the Constitution died for lack of support — at


23 II Hinds’ Precedents, supra at § 1264, p. 818, Senator John Quincy Adams reporting for
the ad hoc committee appointed to examine the question of expulsion of Senator John Smith
of Ohio, December 31, 1807; see also Remick, The Power of Congress in Respect to
Membership and Elections, Vol. I, pp. 531-532 (1929).
24 The Articles of Confederation of 1777 had contained a provision for recall of United
States Senators by the state legislatures. Section V stated that the state legislatures would
have “a power reserved in each state to recall its delegates, or any of them, at any time
within the year and to send others in their stead ....” At the Constitutional Convention at
Philadelphia, “Randolph’s Propositions” of May 29, 1787 proposed for recall of popularly
elected representatives, but this was not accepted by the Convention. I Elliot, Debates on
the Adoption of the Federal Constitution, 143-144, 172 (1888).
25 3 Farrand, Records of the Federal Convention of 1787, 173 (Appendix A).
26 II Elliot, Debates on the Adoption of the Federal Constitution, 289 (1888); note also
discussion of state ratifying debate on lack of authority for state recall in the federal
Constitution, in Herbert S. Swan, “The Use of Recall in the United States,” from The
Initiative, Referendum and Recall, National Municipal League Series, (William Bennett
Munro, editor), at p. 298, n.2 (1912).
27 The Papers of George Mason, 1725-1792 (16 June 1788, Papers 3:1078), Rutland, editor
(1970), as cited in Kirkland and Lerner, The Founders’ Constitution, Vol. II, at 293 (1988).

least from those participating in the ratifying conventions. The framers and the
ratifiers were consciously seeking to remedy what they viewed as the defects of
the Articles of Confederation and some of their state constitutions, and for many28
of them this meant retreating from an excess of democracy.
Another constitutional scholar explained that the formation of the United States
Government as a distinct, sovereign entity was unlike the former confederation, and
the Continental Congress created by the Articles of Confederation where the colonial
legislatures selected the congressmen for the state/colony and could “instruct and
recall them,” such as a sovereign state could do with its ambassador to another
country or to a multinational entity. Once the Union was formed in 1788 upon the
ratification by the 9th state, it became clear that Members of Congress were no longer
merely “ambassadors” from states coming together by treaty or confederation — and
who thus could be recalled by their constituent entities — but rather were new
officers of the newly formed national government, that is, officers of the United
S t at es. 29
Judicial Decisions.
Supreme Court Jurisprudence. Although the Supreme Court has not
needed to directly address the subject of recall of Members of Congress, other
judicial decisions indicate that the right to remove a Member of Congress before the
expiration of his or her constitutionally established term of office is one which
resides within each House of Congress as expressly delegated in the expulsion clause
of the United States Constitution, and not in the entire Congress as a whole (through
the adoption of legislation), nor in the state legislatures through the enactment of30
recall provisions. In Burton v. United States, the Supreme Court ruled that a
provision of federal law which on its face purported to make one convicted of bribery
“ineligible” to be a United States Senator, could not act as a forfeiture of a Senator’s
office, since the only way to remove a Member under the Constitution was by the
Senate exercising its authority over its own Members:
The seat into which he was originally inducted as a Senator from Kansas could
only become vacant by his death, or by expiration of his term of office, or by
some direct action on the part of the Senate in the exercise of its constitutional31
powers.
The concept that the states do not, individually, possess the authority to change
the terms or qualifications for federal officers agreed upon by the states in the United
States Constitution, has been confirmed by the Supreme Court in modern case law.32


28 Thomas E. Cronin, Direct Democracy, The Politics of Initiative, Referendum, and Recall,
at 129 (Harvard University Press 1989).
29 Akil Amar, The Constitution, A Biography, at p. 41 (Random House 2005).
30 202 U.S. 344 (1906).
31 Burton, 202 U.S. at 369.
32 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995); Cook v. Gralike, 531 U.S. 510
(continued...)

The Supreme Court found in U.S. Term Limits, Inc. v. Thornton, that the authority
of the individual states over the elections of federal officials under Article I, § 4, cl.
1, is not a broad authority for an individual state to substantively change the
qualifications, length or number of terms of federal officials established within the
United States Constitution.33 The Court in U.S. Terms Limits, Inc. noted that the
states do retain significant sovereign authority in many areas, but that the states
transferred and delegated certain powers and authority to the national government
within the instrument creating that entity, the Constitution. With respect to powers
in relation to the federal, national government, and any powers deriving exclusively
from and because of the existence of that national government, the states must look
to the United States Constitution for grants or delegation of authority to them.34
Tenth Amendment. As to the 10th Amendment and the “reserved” authority
of the states, the United States Supreme Court has clearly explained that determining
qualifications and terms for federal offices, created within the United States
Constitution, were “not part of the original powers of sovereignty that the Tenth
Amendment reserved to the States,” and thus whatever authority states have over the
terms, qualifications and elections of federal officers must be a “delegated” authority35
from the Constitution. Such authority could not be a “reserved” power of the states,
since the states could not “reserve” a power it did not have as part of its original
sovereign authority, that is, a power relative to something which did not exist before
its creation in the Constitution:
Petitioners’ Tenth Amendment argument misconceives the nature of the right at
issue because that Amendment could only “reserve” that which existed before.
As Justice Story recognized, “the states can exercise no powers whatsoever,
which exclusively spring out of the existence of the national government, which
the constitution does not delegate to them .... No state can say, that is has36
reserved, what it never possessed.” 1 Story § 627.
Re-emphasizing this meaning of the Tenth Amendment’s “reserved” authority vis-a-
vis federal officials, the Court later explained in Cook v. Gralick:
The federal offices at stake “aris[e] from the Constitution itself.” ...
Because any state authority to regulate election to those offices could


32 (...continued)
(2001).
33 U.S. Term Limits, Inc., 514 U.S. at 832-835.
34 U.S. Term Limits, Inc., 514 U.S. at 800-802. The Court stated: “As we have frequently
noted, ‘[t]he States unquestionably do retain a significant measure of sovereign authority.
They do so, however, only to the extent that the Constitution has not divested them of their
original powers and transferred those powers to the Federal Government.’ Garcia v. San
Antonio Metropolitan Transit Authority, 469 U.S. 528, 549 (1985); ... see also New York v.
United States, 505 U.S. 144, 155-156 (1992).” 514 U.S. at 801-802. (Emphasis in original)
35 U.S. Term Limits, Inc., 514 U.S. at 802.
36 U.S. Term Limits, Inc., 514 U.S. at 802. “[A]s the Framers recognized, electing
representatives to the National Legislature was a new right, arising from the Constitution
itself.” 514 U.S. at 805; Cook v. Gralike, supra at 522.

not precede their very creation by the Constitution, such power “had37
to be delegated to, rather than reserved by, the States.”
Members of Congress are clearly federal officials, not state officers, and owe
their existence and authority solely to the federal Constitution. As explained by the
Supreme Court:
In that National Government, representatives owe primary allegiance not to the
people of a State, but to the people of the Nation. As Justice Story observed,
each Member of Congress is ‘an officer of the union, deriving his powers and
qualifications from the constitution, and neither created by, dependent upon, not
controllable by, the states ....’ 1 Story § 627. Representatives and Senators are38
as much officers of the entire union as is the President.
The United States Constitution establishes the exclusive qualifications for
congressional office, sets the specific length of terms for Members of the House and
for Senators, and expressly delegates to each House of Congress the authority to
judge the elections and qualifications of, and to discipline and to remove its own
Members.39 These provisions of the United States Constitution, with respect to
federal officials, have supremacy over state laws and provisions, and state laws in
conflict with such constitutional provisions have been found by the courts in the past
to be invalid.40 Although the language of some state recall laws might be broad
enough to include Members of Congress, or might even explicitly include federal
officers, it does not appear under existing precedents and standards expressed by the
Supreme Court that such statutes could be effective in altering the constitutionally
established term of office of a Member of the United States Congress by allowing a
Member to be removed from office through a state “recall” procedure.41


37 Cook v. Gralike, 531 U.S. at 522.
38 U.S. Term Limits, Inc., 514 U.S. at 803.
39 U.S. CONST., art. I, § 2, cl. 2, and art. I, § 3, cl. 3. Members of the House are to be
“chosen every second Year by the People of the several States ....” (art. I, § 2, cl. 1), and
Senators are chosen for terms of “six Years” each. aArt. I, § 3, cl. 1, and amendment XVII:
“The Senate of the United States shall be composed of two Senators from each State, elected
by the people thereof, for six years ....”). As to judging elections and qualifications, and the
authority to remove Members before their terms expire, see art. I, § 5, cl. 1 and 2.
40 U.S. CONST., art. VI, cl. 2. See, for example, with respect to qualifications for candidates
to federal office: Danielson v. Fitzsimmons, 44 N.W. 484 (Minn. 1950); Application of
Ferguson, 294 N.Y.S.2d 174, 176 (Super. Ct. 1968) (state laws prohibiting felons from
running for congressional office found invalid); Ekwall v. Stadelman, 30 P. 2d 1037 (Ore.

1934); Shub v. Simpson, 196 Md. 177, 76 A.2d 332, appeal dismissed, 340 U.S. 881 (1958);


Hellmann v. Collier, 141 A.2d 908, 911 (Md. 1958); Exon v. Tiemann, 279 F. Supp. 609,
613 (Neb. 1968); State ex rel. Chavez v. Evans, 446 P.2d 445, 448 (N.M. 1968)(state
statutes requiring congressional candidates to reside in congressional district found invalid);
Dillon v. Fiorina, 340 F. Supp. 729, 731 (N.M. 1972); Campbell v. Davidson, 233 F.3d 1229th
(10 Cir. 2000), cert. denied, 532 U.S. 973 (2000); Schaefer v. Townsend, 215 F.3d 1031
(9th Cir. 2000), cert. denied, Jones v. Schaefer, 532 U.S. 904 (2000)(state laws establishing
durational residency requirements for congressional candidates found invalid).
41 “Should this [state] constitutional amendment be so construed as applying to the recall of
(continued...)

Administrative and Judicial Decisions on State Recall Laws. In
Oregon in 1935, the state Attorney General ruled that the state’s recall provisions
could not apply to a Member of Congress, who is not actually a state official, but who
holds his office pursuant to the United States Constitution and is a federal
constitutional officer. The opinion found that such recall provisions would interfere
with the Congress’s exclusive constitutional authority over the elections and
qualifications of its own members, noting that the “jurisdiction to determine the right
of a representative in Congress to a seat is vested exclusively in the House of
Representatives ... [and] a Representative in Congress is not subject to recall by the
legal voters of the state or district from which he was elected.”42
In interpreting a state recall statute, the Attorney General of Wisconsin did note
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.43 When such matters have on rare occasions
reached the courts, however, the courts have thus far found that state recall laws are
ineffective to override and substitute for the provisions of the United States
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


41 (...continued)
a Representative in Congress it would to that extent be inoperative.” Biennial Report and
Opinions of the Attorney General of the State of Oregon 313, (April 19, 1935). If a recall
election for a Member of Congress were actually held under a state provision, it is most
likely that the ultimate effect would be “advisory” only, having perhaps significant political,
but not legal, import. It may be noted that in Arizona, the state law allows a candidate for
United States Senator or Representative in Congress to sign a “pledge” to resign from office
if he or she loses a recall election under state recall procedures. Arizona Rev. Stats. §§ 19-
221, 222. If the candidate signs the pledge or files an alternative statement that he or she
will not be bound by a recall, such statement is given by the secretary of state “to the public
press when made.” Notwithstanding such pledge, a legal action to enforce a promise to
voluntarily resign elective federal office may prove problematic, although a refusal to honor
such promise could obviously have significant political impact for an elected official.
42 Biennial Report and Opinions of the Attorney General of the State of Oregon 313 (1935).
See also opinion and brief of Senator Walter George, then Chairman of the Senate
Committee on Privileges and Elections, reaching the same conclusion as to the lack of
constitutional authority of a State to terminate or cut short by recall the constitutionally
established term of a United States Senator or Representative, 79 Congressional Record

10688-89 (July 3, 1935).


43 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.”

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 United States Constitution.44 Similarly, a state
court in Michigan dismissed a petition effort to recall a Member of Congress under
that state’s recall statute. Although an administrative entity had earlier approved the
language of the recall petition, and despite the express language of the state law, the
court granted an injunction against the continuation of the recall effort, finding “that
pursuant to the text of Article I of the United States Constitution and by operation of
the Supremacy Clause of the United States Constitution, the recall provisions under
Michigan law are ineffective to recall a Member of Congress.”45
Constitutional Amendment; Pro and Con.
For a recall provision to be enforceable against a Member of Congress, it would
appear that a constitutional amendment would need to be adopted by the requisite
number of states authorizing such a recall procedure in the United States
Constitution. Although there has been some call for a constitutional amendment
authorizing national “referenda” or “initiatives,” there has not been significant
movement for a national recall provision.
Supporters of recall provisions see this mechanism as a device to assure regular
and close oversight of elected public officials, and to make elected officials more
continuously, rather than periodically, responsible and responsive to the will and
desires of the electorate. With recall procedures available, it is argued, there is no
need for the electorate to tolerate an incompetent, corrupt, and/or unresponsive
official until that official’s term is over.
Those who oppose recall note that recall petitions generally need only a
relatively small minority of the electorate to force a recall election of an official.
With the threat of a recall election ever present, it is argued that an official may be
deterred from, and penalized for, taking strong and clear political positions that could
offend even a small, but vociferous and active political group. It is contended that
such small special interest or “single-issue” groups might effectively stymie an
official by constantly occupying the official with the potential need to campaign and
run in a recall election. It is also argued that complex governmental programs and
policies may often need to function and to be evaluated in the long run, over time; but
with the threat of immediate recall, Members may be further deterred in supporting
long-term plans and programs for the country which may not bring immediate, short-
term benefits to constituents.


44 See New York Times, “U.S. Judge Rejects Plea Asking Recall of Senator Church,” p. 47,
col. 1 (October 1, 1967); Washington Post, “Recall Barred,” p. A5 (Sept. 30, 1967).
45 Walberg v. Lenawee County Board of Election Commissioners, File No. 07-2694-AW,
Order Granting Plaintiff’s Motion for Summary Disposition, at 2 (Mich. Cir. Ct., Nov. 6,

2007).