New Jersey Tea Party activists will not be allowed to proceed with their effort to recall U.S. Sen. Robert Menendez because no provisions of the federal Constitution allow for it, the state Supreme Court held on Thursday.
The Court, in a 4-2 ruling, also declared unconstitutional those parts of the state Constitution and the Uniform Recall Election Law (UREL) that allow voters to recall members of Congress.
“Bound as we are to adhere to the supreme law of the land, we cannot permit a provision of the State Constitution to remain in force if it conflicts with the Federal Constitution,” wrote Chief Justice Stuart Rabner for the majority in Committee to Recall Robert Menendez v. Wells , A-86-09. Justices Barry Albin, Jaynee LaVecchia and Virginia Long joined in Rabner’s opinion.
The majority said the Recall Amendment and the UREL were preempted by the Supremacy Clause of the U.S. Constitution, Article VI, cl. 2, the 17th Amendment and the Elections Clause, Article 1, § 4, cl. 1.
The Court also rejected the Tea Party’s argument that the time was not ripe for a constitutional analysis.
“This case presents important procedural and substantive issues of constitutional dimension,” Rabner said. “Procedurally, the parties have raised an issue that cannot be sidestepped. They sharply disagree as to whether a U.S. Senator can be recalled under state law. Without a ruling on the legal dispute, the recall process cannot lawfully proceed.
“Although courts are to avoid constitutional issues when possible, in this case there is no other appropriate way to resolve the ongoing conflict.”
Rabner said the majority conducted a thorough analysis of the history of the drafting of the U.S. Constitution, the wrangling that went on between various delegations and the occasional proposals that were brought up concerning recall.
“That analysis reveals that the Federal Constitution does not permit recall,” he said. “The historical record leads to but one conclusion: the Framers rejected a recall provision and denied the states the power to recall U.S. Senators.
“In drafting a new Constitution, the founders of this nation envisioned a stable, independent body with two senators from each state, whose six-year terms would enable them to take a long-term view of national issues without being subject to recall.”
Allowing for each state to adopt a recall process for members of Congress would be unworkable, Rabner said.
“Such an approach could result in a patchwork of inconsistent rules about recall among the fifty states, which would be contrary to the Federal Constitution,” he said.
Allowing the recall effort to proceed would cause harm to Menendez since he would have to turn his attention to raising money to fight a recall election and supervising that effort, Rabner said, and that would come at the expense of his congressional responsibilities.
“The recall initiative also injects uncertainty and instability into the State’s electoral scheme – inviting citizens to sign petitions in the belief that they are participating in a constitutional process – and adversely affecting public confidence in the integrity of the system.”
The Tea Party launched its recall effort in large part based on their opposition to Menendez’s positions on immigration reform, health care spending and environmental regulation. The lawsuit began during the Corzine administration when Secretary of State Nina Wells refused to accept the committee’s notice of intent to begin the recall process.
Appellate Division Judges Edwin Stern, Ronald Graves and Jack Sabatino, though, said the recall drive could proceed since there was no language in the U.S. Constitution that invalidated the Recall Amendment or the UREL. The appeals court judges stayed their ruling pending a decision by the state Supreme Court.
Rabner noted that the issue of recall was brought up in 1787 during the debate over how the Constitution would be written and in the early 1900s when the states were considering the 17th Amendment, which provided for the direct election of U.S. senators.
“However, none of those proposals survived…” he said.
The Tea Party relied heavily on a 1787 letter from George Washington to his nephew, Bushrod Washington, in which he seemed to favor the idea of recall. Rabner, however, said the language of the letter was ambiguous and added that a “private letter to a family member can hardly outweigh open, public debate at the conventions.”
The majority, engaging in what Rabner described as “judicial surgery” said those portions of the Recall Amendment and the UREL that allow for the recall of local and state officials are constitutional and could continue to be used.
There is simply nothing in the historical record nor in the Constitution itself which allows for the recall of members of Congress, Rabner said. He pointed in particular to the U.S. Supreme Court’s ruling in U.S. Term Limits Inc. v. Thornton , 514 U.S. 779 (1995), in which the Court agreed that there was no mechanism for recall.
Most scholars and attorneys general also have written that there is nothing in the Constitution that allows for recall efforts.
The majority’s conclusion “is faithful to the rule of law,” he said. “It is faithful to the written words in the Constitution, as illuminated by the Framers who debated its test and those who participated in the state ratifying conventions. It is guided by relevant case law and informed by thoughtful scholarship.
“It is also faithful to the enduring form of our constitutional democracy, which the Framers established more than 200 years ago,” he said.
Justice Roberto Rivera-Soto, in a dissent joined by Justice Helen Hoens, said it was not necessary at this point to address the constitutionality of the 1993 Recall Amendment to the state Constitution, Article 1, para. 2(b), nor the UREL, N.J.S.A. 27A-1 to -18, since the committee had not gathered the required 1.3 million signatures needed to proceed with the recall.
Rivera-Soto and Hoens also said there was nothing in the federal Constitution that bars recall elections of federal officials, and that the effort should go forward as an Appellate Division panel had found.
The Tea Party was represented by conservative activist Andrew Schlafly, who says the party will appeal the ruling to the U.S. Supreme Court.
“The [majority] did not attach enough significance to George Washington’s letter to his nephew,” said Schlafly, the legal director of the Eagle Forum Defense and Education Fund. “They did not recognize that powers not directly delegated to the federal government are granted to the states.
“And there was no recognition that along with the inherent power of the voters to hire, or elect, senators comes the right to fire, or recall, those senators,” he says.
Menendez’s lawyer, Marc Elias, of Washington, D.C.’s Perkins Coie, issued a statement through the senator’s office saying the Tea Party’s efforts were “clearly unconstitutional.”
“We strongly believe that this is the end of the matter,” Elias said. “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.”
Added Menendez spokesman Afshin Mohamadi: “The New Jersey Supreme Court today ruled that this fringe effort to recall a leader in the fight against special interests is definitively unconstitutional. It is a resounding victory against the Tea Party’s Washington-based right-wing corporate backers…
“Even if this Tea Party organization and their national right-wing benefactors appeal this decision, the chances that the U.S. Supreme Court would overturn a ruling upholding the Constitution are close to zero.”