Something I’ve often recommended over the years has been initiating recalls on politicians who attempt to expand the powers of the state (be it an individual state or the federal state). People in Montana are attempting to recall their senators who voted in favor of the National Defense Authorization Act (NDAA):
(HELENA) – Moving quickly on Christmas Day after the US Senate voted 86 – 14 to pass the National Defense Authorization Act of 2011 (NDAA) which allows for the indefinite military detention of American citizens without charge or trial, Montanans have announced the launch of recall campaigns against Senators Max Baucus and Jonathan Tester, who voted for the bill.
It appears as though my recommendation has been for naught as recalling a federal “representative” isn’t a straight forward as I first believed. Each individual state is able to set internal policy including settings grounds for which “representatives” can be recalled or otherwise removed from office before their term is up. Unfortunately those working on the federal level believe themselves to be immune to any for of early removal not initiated by the House or Senate [PDF]:
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[…]
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 of recall provisions
Not surprisingly this interpretation on individual state power was produced by the Senate. The bottom line is clear, according to the federal government a federal “representative” can only have his or her stay terminated early if a federal body initiates the expulsion. Some people are quick to bring up the Tenth Amendment as it reserves all powers not expressly mentioned in the Constitution for the individual states. Unfortunately the Constitution does describe how to send a “representative” home early in Article I, Section 5, Clause 2:
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.
Nowhere in the clause does it state that expulsion of a member is solely reserved for the respective House but our federal “representatives” are interpreting it that way. Their justification is since removal of a federal “representative” is mentioned in the Constitution that power is exempt from the Tenth Amendment. I always find it funny how selectively the Constitution is interpreted. In the case of removing a federal “representative” the Constitution must be interpreted exactly at written, that is to say no unmentioned powers may be used. Meanwhile the Second Amendment clearly states, “the right of the people to keep and bear arms shall not be infringed.” yet, according to our “representatives” and the Supreme Court it leaves room for some infringements.
Sadly the Constitution wasn’t a well written document and contains a lot of vague language that can be twisted to grant the federal government more power than was originally intended. The purpose of the Constitution was to restrict the powers of the federal government but that intention was entirely lost when the individual states allowed the federal government sole authority in interpreting the foundational document. Now that the federal government reserves sole power of constitutional interpretation they have effectively made themselves immune to constituent scrutiny.