Tilting At Recalls.

With Senator Mary Landrieu (D - For Sale) doing her best to participate in Harry Reid’s recent ‘Cash for Cloture’ program and voting to place one sixth of our economy under direct government control, a lot of people here in Louisiana - including a lot of Tea Party folks - have been demanding her recall.

A great emotional sentiment; but legally, it’s not that easy. While Landrieu, Reid, Pelosi, and their Lefty comrades are busy trying to shred our Founding Document to create their Euro-government paradise, we in the Tea Party Movement are in the vanguard of protecting the Constitution and the Rule of Law - even when it doesn’t go our way.

And in this case, it doesn’t.

The Constitution has a thing or two to say about who can boot out a sitting Representative or Senator. Article I, Section 5 is quite clear:

Each House shall be the judge of the elections, returns and qualifications of it’s own members…

and goes on to say in the next paragraph:

Each House may determine the rules of it’s proceedings, punish members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

In other words, the Constitution gives the respective Houses of Congress alone the power to set further qualifications for their members, or remove the same. This has been the understanding of the Article I, Section 5, language since the Constitution was ratified, and the Courts have consistently concurred.

Some have argued that since Article I, Section 4 gives the States the power to set “the times, places, and manner of holding elections for Senators and Representatives…”, then all of a State’s election laws must apply to all Senators or Representatives from that State – including a State’s recall law if they have one (Louisiana has one). But this Constitutional language only delegates to the States how the elections occur. Once elected, Senators and Representatives are Federal officials subject to the Constitution - not state laws.

And the Tenth Amendment? The Supreme Court has concluded, U.S. Term Limits, Inc. v. Thornton, 514 U. S. 779 (1995) and Cook v. Gralike, 531 U.S. 510 (2001), that the Tenth Amendment does not reserve to the states the power to put further qualifications on Senators and Representatives, as that power was specifically delegated to the Congress. As Federal Officials, the offices of Senators and Representatives "arise from the Constitution itself", not various individual state laws.

Therefore, only Constitutional provisions apply to the tenure of Senators and Representatives, and a State may not qualify that further. It is, and has been, settled Law.

Would a legal challenge to 223 years of Constitutional understandings and precedent work to remove Landrieu? Highly doubtful. While the question of 'recall' has never been specifically adjucicated (a major claim by proponents for the constitutionality of a recall), the questions concerning the division of powers in the Constitution that a recall would raise have been clearly and consistantly answered - and they do not favor finding a recall constitutional. As a practical matter, it would require someone with a lot of time, a lot of disposable income, and standing to make the challenge. They would need to raise a constitutional question unique enough to make its way through the Courts, for SCOTUS to grant cert, and then find in favor of the constitutionality of a recall. That's a lot of "ifs" before any recall could take place. By that time Landrieu would likely be up for reelection.

The demand to recall Mary Landrieu is not the only one in Louisiana in 2009. Back in the beginning of the year an attempt to recall Joseph Cao (R-New Orleans) got a lot of press after he opposed Obama’s Stimulus Package. But it has gone nowhere because, in the words of the recent opinion by the Louisiana State Attorney General (09-0015):

In conclusion, a member of Congress is neither a state officer nor local officer and therefore is not subject to recall pursuant to La. R.S. 18:1300.1, et seq.

The United States Constitution has delegated to Congress the power to determine the qualifications of its own members and expel its members when necessary. Since this is a power reserved for the individual Houses of Congress, the tenth amendment of the United States Constitution does not reserve to the states the authority to remove members of Congress from office.

Neither the Secretary of State, Registrars of Voters for the Parishes of Orleans and Jefferson, nor Governor Jindal would be required to proceed with the recall process set forth under Louisiana law. These offices only have jurisdiction over a recall attempt of a public officer as defined under Louisiana law. This definition does not include officers acting under the authority of the United States.

I contacted the Secretary of State's Office yesterday (4 January) about petitioning to recall a Federal elected official under Louisiana law, and confirmed with them that the Attorney General's opinion will control their actions if any petition is filed. In other words, no recall election will be called by the Secretary of State's office.

So in the end, as much as we wish it to be otherwise, any 'Recall Mary' petitions gathered and presented to the the Secretary of State's Office would go nowhere, and any court challenge would take years with almost no chance of success. Attempting a recall would take up a lot of our time, our money and our effort, and would distract us from winnable issues that will resonate with a majority of voters in 2010. If we want to change things we need to focus on 51%-plus solutions, not 3.79% solutions. The best way to remove Mary Landrieu's power now is to make her a member of the minority party in the Senate in January 2011, or at a minimum, remove the 60-seat majority in the Democrats enjoy in the Senate.