A New Jersey appeals court ruled on March 16th that a Tea Party group has the right to attempt to throw a U.S. Senator out of office. In Committee to Recall Robert Menendez v. Nina Wells, Secretary of State et al., the court ordered the approval of a petition for the recall of U.S. Senator from New Jersey, Robert Menendez. The court postponed deciding the larger question of whether individual states have a constitutional right to recall a federal lawmaker.

Eighteen states authorize recalling elected officials. Nine of those states, including New Jersey, authorize the recall of any elected official, including U.S. Senators. In 1993, New Jersey citizens voted to adopt a recall provision by a margin of more than three to one. The provision in the New Jersey Constitution authorizes removing “any elected official” who has served for at least one year. But before the parties organizing a recall may begin collecting signatures, the Secretary of State must approve the wording of the ballot question.

The lawsuit began last September when the Democratic Secretary of State of New Jersey refused to approve a petition to recall the Democratic Senator Menendez on the grounds that it was unconstitutional. The Committee to Recall Robert Menendez, which had filed the petitions, then sued to compel the Secretary of State to do her job.

In a per curiam unanimous decision, the appellate court ordered the Secretary of State to accept the petition. Signature collection cannot begin immediately because the court stayed its ruling for 45 days in case there is an appeal to the New Jersey Supreme Court. In order to place the recall on the ballot, 1.3 million signatures on the petitions will be needed. The court set aside the issue of constitutionality, citing judicial restraint as support for its decision. It will take up that question if the parties succeed in collecting the number of signatures necessary for a recall election.

The U.S. Constitution neither explicitly authorizes, nor explicitly prohibits, a recall of a Member of Congress. Questions about the constitutionality of states exercising power over their members of Congress were discussed in the 5-4 decision of United States Term Limits v. Thornton, 514 U.S. 779 (U.S. 1995), but the issue of the constitutionality of a recall has never been decided.

Thornton dealt with whether individual states may impose term limits on congressmen. The majority found that “the Constitution forbade states from adding to or altering the qualifications [for serving as a member of Congress] specifically enumerated in the Constitution.” The dissent, written by Justice Clarence Thomas, argued that states do have such power over their congressmen, and that the Constitution nowhere prohibits exercise of that power to change the requirements for members of Congress. In citing Thornton, the New Jersey court agreed with the dissent: “There is no express textual answer to this debate in the United States Constitution. Nor is there any precedent from the United States Supreme Court squarely on point.”

A recall is more likely to be constitutional than term limits because a recall does not alter the qualifications for office. In New Jersey, the person being recalled can run on equal terms for reelection to the same office.

Moreover, early American history provides examples of states exercising considerable power over their Senators and Representatives. The right to “instruct” selected Senators, telling them how to vote, was commonly accepted and expected from the beginning of American history. The Virginia General Assembly stated, “It is the duty of the representative to obey the instructions of his constituents or resign the trust with which they have clothed him.”

The Seventeenth Amendment shifted the selection of U.S. Senators from state legislators to the people, but did nothing to limit the power of the people to recall an unsatisfactory representative. Indeed, there is no precedent in any area of law for an implicit, irrevocable grant of authority to a representative or agent.