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fan4ever
03-17-2010, 01:16 AM
Now this is very interesting...at least I thought so.

Tea parties win key victory in ousting Congress
Court rules 'no precedent' stopping voters from recall of U.S. senator

Posted: March 16, 2010
10:48 pm Eastern


By Drew Zahn
2010 WorldNetDaily



Sen. Robert Menendez, D-N.J.

Tea partiers in New Jersey have moved one step closer to ousting a sitting U.S. senator that they say has shown "a total disregard for the people's wishes."

New Jersey Tea Parties United and the Sussex County Tea Party have joined forces to try an unprecedented way of sending a message to Washington: removing a senator through a recall vote.

A three-judge appellate panel ruled today that the New Jersey secretary of state must accept the tea partiers' notice of intent to recall Sen. Robert Menendez, D-N.J., and allow their joint recall committee to begin collecting the voter signatures needed to put the senator's name back on the ballot, two years before his term is supposed to end.

New Jersey is one of a handful of states that allows for the recall of its congressmen, thanks to a constitutional amendment New Jersey voters approved by a 3-to-1 margin in 1993.

Nonetheless, when the tea partiers filed to begin the recall process last September, New Jersey Secretary of State Nina Wells, under advisement of the state's attorney general, initially denied their notice, taking up the unusual argument that the state's constitutional amendment is unconstitutional.

Executing a recall of a member of the U.S. Senate "is a matter of exclusive jurisdiction of federal authority," Wells responded in an official letter. "Neither the United States Constitution nor federal statute provide for a recall proceeding for a federally elected official."

The tea partiers, however, then turned to the courts.

Their lawsuit asked, "Can the state [of New Jersey], after amending its Constitution and passing legislation to guarantee its citizens access to a formal, state-endorsed mechanism to foster collective 'core political speech,' deny its citizens access to that mechanism because of the content of their political message?"

The state's appellate court today answered, "No."

The tea partiers explained their reasons for trying to oust Menendez, telling the New Jersey Herald their senator "does not represent the people the way his oath requires that he does," as evidenced by his votes on Medicare, health care and "extravagant, excessive multi-million dollar projects that offered little or no short-term economic benefits."

No U.S. senator, however, has ever been subjected to a recall vote, and, in fact, the U.S. Constitution doesn't provide any process for doing so. Consequently, Wells and her attorney have argued that the attempt is unconstitutional.

The court today, however, ruled that Wells determined this "albeit without citation to any specific legal authority."

And while the court's ruling suggests Wells' conclusion may in the end be correct, it admits the limits of judicial restraint prevent the court from stopping a legal process just because it might be ruled unconstitutional later.

"The language of the state constitutional amendment and the implementing legislation is clear and unambiguous," the judges stated. "No published opinion from any federal or state court in the nation has yet declared invalid a state recall measure's application to a member of the United States Senate or the House of Representatives."

And without that precedent, the judges decided, the court had no alternative but to order the recall process allowed to continue (though the order is stayed until further appeals by Wells can be heard).

"In sum," the ruling concluded, "there are a host of genuine arguments and counterarguments that can be articulated and debated about whether or not the federal Constitution would permit a United States senator to be recalled by the voters under state law. 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.

"We are pointed to no precedential opinion which has held that the recall of a United States Senator cannot be conducted," the court said. "The silence of the federal Constitution may well result in the conclusion that it may be done."

Provided the court's order stands through further appeals, the tea partiers will then have 320 days to obtain the signatures of 25 percent of registered voters in New Jersey, roughly 1.3 million names, to place a recall on the ballot.

The effort to recall a senator is not entirely new, nor is it limited to New Jersey.

Peter Ferrara, a lawyer for the American Civil Rights Union, which is helping the tea partiers with their case, told the Washington Times, "Nine states, including 12 Democratic senators who are not up for re-election otherwise, could all be on the ballot with a recall.

"Given what they're doing on health care this year," he added, "that's just going to be a huge boost to the recall effort."

The other states that could attempt recalls of their congressional representatives are Colorado, Michigan, Montana, North Dakota, Oregon, Washington, Wisconsin and Louisiana, where an effort is already underway to oust Democratic Sen. Mary L. Landrieu.

A Republican has also heard the stirrings of recall when some Louisiana citizens who objected to his vote against the stimulus bill sought to remove Rep. Ahn Cao last year. The attempt failed to generate enough signatures before the state's 180-day time limit expired.

Taco John
03-17-2010, 01:28 AM
Totally awesome.

CoMoChief
03-17-2010, 01:33 AM
You mean congressmen/women can actually be held accountable for their own actions and can possibly be de-seated from congress? This is what's going to happen across the board if this HC bill gets back door'ed into law.

Congrats democrats......your days are numbered and BO just lead your party off a ****in cliff.

Taco John
03-17-2010, 01:53 AM
This is really big news actually. The Tea Party just got teeth.

WoodDraw
03-17-2010, 02:04 AM
Hm, I have a hard time believing this would be held up.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members

...

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

And the 17th Amendment:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

WoodDraw
03-17-2010, 02:12 AM
And now that I've read the decision and not NutJobDaily's take on it, the ruling makes more sense:

To summarize, we neither declare the recall provision in our State Constitution as applied to a United States Senator definitively valid or invalid. There is, and there will be, no necessity for our courts to resolve this difficult constitutional issue if the Committee’s petition drive fails to collect the necessary, approximately, 1,300,000 signatures. Pending that possible eventuality, we see no urgent reason to now decide the question of invalidity or validity with finality. All we need to decide, as we have done, is whether there is a sufficient basis for the Committee to proceed with its initiative and for the Secretary of State to perform her ministerial function. To go beyond that limited holding and “embrace unnecessary constitutional questions” would depart from the “older, wiser counsel” of judicial restraint.

The court basically dismissed the question as not being relevant to the issue before the court.

Chocolate Hog
03-17-2010, 02:13 AM
http://news.yahoo.com/s/ap/us_nj_senator_recall

Taco John
03-17-2010, 02:27 AM
"We are pointed to no precedential opinion which has held that the recall of a United States Senator cannot be conducted," the court said. "The silence of the federal Constitution may well result in the conclusion that it may be done."

btlook1
03-17-2010, 03:18 AM
I wonder when California is going to get tired of the wicked witch of the west? Boot her ass!

ClevelandBronco
03-17-2010, 03:42 AM
...The other states that could attempt recalls of their congressional representatives are Colorado, Michigan, Montana, North Dakota, Oregon, Washington, Wisconsin and Louisiana, where an effort is already underway to oust Democratic Sen. Mary L. Landrieu...

Time to get to work.

Warrior5
03-17-2010, 06:41 AM
I don't know how long this will go on, but right now it's awesome.

Saul Good
03-17-2010, 07:08 AM
It doesn't matter much what the ultimate ruling is. What's important is that the Senate has been put on notice.

Amnorix
03-17-2010, 07:37 AM
Interesting. I thought the Constitution provided for six year terms, in which case, once the NJ court does take up the matter (per Wooddraw's post they deferred the question), I think it's unlikely to succeed.

If the Constitution is silent on the number of years that may be served, however, then I guess there's no reason why a recall wouldn't be valid.

Amnorix
03-17-2010, 07:39 AM
Wooddraw's right about the 17th amendment. While the NJ court essentially deferred the issue until later, it's hard for me to fathom that the recall concept can succeed in the long run.

Text of 17th amendment in full:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election (http://www.chiefsplanet.com/wiki/Writ_of_election) to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

InChiefsHell
03-17-2010, 07:43 AM
It doesn't matter much what the ultimate ruling is. What's important is that the Senate has been put on notice.

This.

They HAVE to take notice now, whether they like it or not, the people are pissed and mad as hell and we're not gonna take it any more! This is truly amazing, and I'm pumped to be able to see it happen in my lifetime. This is the first time that I can ever remember the people rising up in such a way...peacefully, I might add. This is what makes me proud as ever to be an American. The people are FINALLY speaking!

thecoffeeguy
03-17-2010, 09:11 AM
It doesn't matter much what the ultimate ruling is. What's important is that the Senate has been put on notice.

Exactly.

Democrats should be cowering right, ESPECIALLY with this healthcare vote coming up. It will be political suicide for those who vote for it.

This is great timing to. I hope this continues to gain steam while this healthcare monstrosity is going as well.

The people are tired of the crap going on in DC and are making their voices heard.

I suspect if this continues like this, you will see a lot more angry people take to the streets to take this country back.

BucEyedPea
03-17-2010, 09:16 AM
I'd be wary of the idea that where the "Constitution is silent" that it can be done. That would wreck the "specific and enumerated" powers argument Constitutionalists adhere to. That and the fact that its the ACLU ( not that they're always wrong but they do have an expanded idea of intepretation.)

Too bad state govts can't choose their own senators anymore. They could recall them then if they were not looking out for their state's interests.

Garcia Bronco
03-17-2010, 10:02 AM
Wooddraw's right about the 17th amendment. While the NJ court essentially deferred the issue until later, it's hard for me to fathom that the recall concept can succeed in the long run.

Text of 17th amendment in full:

Recalls are legal and up to the states. It technically doesn't even involve the Federal Governemnt. The Feds have no choice.

Radar Chief
03-17-2010, 10:13 AM
This.

They HAVE to take notice now, whether they like it or not, the people are pissed and mad as hell and we're not gonna take it any more! This is truly amazing, and I'm pumped to be able to see it happen in my lifetime. This is the first time that I can ever remember the people rising up in such a way...peacefully, I might add. This is what makes me proud as ever to be an American. The people are FINALLY speaking!

Heh.

<object width="480" height="385"><param name="movie" value="http://www.youtube.com/v/wxxhPKSeMR0&hl=en_US&fs=1&"></param><param name="allowFullScreen" value="true"></param><param name="allowscriptaccess" value="always"></param><embed src="http://www.youtube.com/v/wxxhPKSeMR0&hl=en_US&fs=1&" type="application/x-shockwave-flash" allowscriptaccess="always" allowfullscreen="true" width="480" height="385"></embed></object>

Sorry for the French subtitles but it's the only one I could find with the whole speech.

fan4ever
03-17-2010, 10:14 AM
This could be exactly what this country needs; corrupt and incompitent politicians could have to deal with the fact that they could be "fired". Then things like term limitations would become a non-issue...do a good job, you can stay.

Mr. Kotter
03-17-2010, 10:15 AM
Interesting. I thought the Constitution provided for six year terms, in which case, once the NJ court does take up the matter (per Wooddraw's post they deferred the question), I think it's unlikely to succeed.

If the Constitution is silent on the number of years that may be served, however, then I guess there's no reason why a recall wouldn't be valid.

It's a six year term, but the Senator serves at the behest of the STATE. If the state has a recall procedure in place, barring an explicit prohibition in the Constitution....the feds might have to defer to the state. Interesting issue, regardless.

Garcia Bronco
03-17-2010, 10:41 AM
It's a six year term, but the Senator serves at the behest of the STATE. If the state has a recall procedure in place, barring an explicit prohibition in the Constitution....the feds might have to defer to the state. Interesting issue, regardless.

This right here. The state decides on it representation, if the state Constitution allows for recall, like Colorado, of a Federal Senator then the Senator can be removed. It's not even in the Feds jurisdiction. Not seating the replacement is a different matter. Denying that revocation is an act of war.

BucEyedPea
03-17-2010, 10:55 AM
Recalls are legal and up to the states. It technically doesn't even involve the Federal Governemnt. The Feds have no choice.

I thought that was because state legislatures used to choose them?
Does it still apply if they're voted in by the "people" now?

BucEyedPea
03-17-2010, 10:56 AM
This right here. The state decides on it representation, if the state Constitution allows for recall, like Colorado, of a Federal Senator then the Senator can be removed. It's not even in the Feds jurisdiction. Not seating the replacement is a different matter. Denying that revocation is an act of war.

Except states don't decide their representation anymore except through popular vote.
I'd love to see the line on this. I knew it could be done before popular election of senators.
But I see what you're saying....it's in the state Constitution. That would make more sense.

Garcia Bronco
03-17-2010, 10:57 AM
I thought that was because state legislatures used to choose them?
Does it still apply if they're voted in by the "people" now?

It depends on the State Constitution. Only 10 or so states actually allow the recall of a federal congressmen. But it is up to the states, while I have no doubt the Federal courts would get involved.

BucEyedPea
03-17-2010, 11:07 AM
Originally Posted by Amnorix
Interesting. I thought the Constitution provided for six year terms, in which case, once the NJ court does take up the matter (per Wooddraw's post they deferred the question), I think it's unlikely to succeed.

If the Constitution is silent on the number of years that may be served, however, then I guess there's no reason why a recall wouldn't be valid.

The Constitution provides explicitly for a "term of office" to "be for six years." Article I.31

The Framers felt it was important for the Senator to have a longer term than a rep. They almost made it 7 years but compromised on 6 years.

The key difference is that Senators no longer serve as agents of the state govts which appointed them. They are put in office by popular election now. Sure that's a popular election in a state but they're no longer ambassadors if the state govts.

BucEyedPea
03-17-2010, 11:08 AM
It depends on the State Constitution. Only 10 or so states actually allow the recall of a federal congressmen. But it is up to the states, while I have no doubt the Federal courts would get involved.

I edited because I forgot to address the state constitution at first. Sorry I skim read when I multi-task.
Other than that, I was addressing the Federal Constitution.

morphius
03-17-2010, 11:08 AM
This is really big news actually. The Tea Party just got teeth.
I wouldn't say it has teeth until it gets the signatures, right now it is just barking. But it is fun to watch.

Taco John
03-17-2010, 11:10 AM
I'd be wary of the idea that where the "Constitution is silent" that it can be done. That would wreck the "specific and enumerated" powers argument Constitutionalists adhere to.

Not where the people are concerned.

The Tenth Amendment:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Garcia Bronco
03-17-2010, 11:12 AM
The Constitution provides explicitly for a "term of office" to "be for six years." Article I.31

The Framers felt it was important for the Senator to have a longer term than a rep. They almost made it 7 years but compromised on 6 years.

The key difference is that Senators no longer serve as agents of the state govts which appointed them. They are put in office by popular election now. Sure that's a popular election in a state but they're no longer ambassadors if the state govts.

The term of a Senator has nothing to do with this if they are recalled. Regardless of how they get there, they are still representation of the state in our republic.

patteeu
03-17-2010, 11:13 AM
Interesting. I thought the Constitution provided for six year terms, in which case, once the NJ court does take up the matter (per Wooddraw's post they deferred the question), I think it's unlikely to succeed.

If the Constitution is silent on the number of years that may be served, however, then I guess there's no reason why a recall wouldn't be valid.

States appoint/elect replacement Senators for fewer than 6 years all the time.

The Mad Crapper
03-17-2010, 11:14 AM
ROFL

BucEyedPea
03-17-2010, 11:15 AM
Not where the people are concerned.

The Tenth Amendment:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

I don't know. It says "the powers not delegated" but the term is expressly set for 6 years. That seems pretty delegated to me. And they are now popularly elected by Constitutional Amendment. If they were still appointed by the state govt then a recall can occur. I think Garcia has the correct angle....what the state Constitutions say. I just don't think it's clear but arguable.

BucEyedPea
03-17-2010, 11:19 AM
The term of a Senator has nothing to do with this if they are recalled. Regardless of how they get there, they are still representation of the state in our republic.

They are no longer representative of state govts though. State officials, who appointed them used to monitor them and could recall if that state, meaning the state govt's rights were being trampled. Today senators no longer function in that role but represent the state's peoples. That doesn't mean interests in that state are not represented just not the state govts. Key difference there.

BucEyedPea
03-17-2010, 11:26 AM
Amendment 17 - Senators Elected by Popular Vote

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

BucEyedPea
03-17-2010, 11:37 AM
BTW the Senate was designed to be a Guardian against Those Demanding Redistribution of Wealth.

Isn't it the Senate bill that's up for vote in the House?

Anyhow, I'm just looking at all the angles that can be thrown at this outside of knowing what a state's Constitution says.

Anyhow here's Madison:
"The appointment of senators by the State legislatures...is recommended by the double advantage of favoring a select appointment, and of giving State governments such an agency in the formation of the federal government as must secure the authority of the former...."

Seems to me that the Seventeenth Amendment was one of the death knells for federalism in America. It's no wonder Ron Paul proposed S.J. Res. 35 to repeal it.