Walberg Watch: More on the Walberg Recall

Tuesday, July 24, 2007

More on the Walberg Recall

Yesterday was the hearing in Adrian on the clarity of the recall petition language. The petition ran into a roadblock, however, with a challenge from the Walberg campaign's lawyer.

An attorney for Walberg's campaign argued in a Lenawee County court Monday that the U.S. Constitution does not allow for members of Congress to be recalled, even though Michigan's constitution does.

"You can quote all the Michigan constitutional and state statue provisions you want -- they don't override (the federal constitution)," Eric E. Doster, of the Lansing firm Foster, Swift, Collins and Smith, said.

Jim Carr, meanwhile, says:

"I'm following Michigan state law that says that you can," Carr said.

And:

Lenawee County Clerk LouAnn Bluntschly and a spokesman for Secretary of State Terri Lynn Land previously said recalling a congress member required the same process as recalling a state lawmaker.

So who's right? Well, it's tricky.

These are the qualifications for office given by the Constitution of the United States of America:

Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.
No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.

And that's it. Nothing about recalls, but also nothing about term limits. Why bring up term limits? Because Tim Walberg will.

The Constitution of Michigan of 1963, Article II, Section 10, deals with term limits for members of Congress:

No person shall be elected to office as representative in the United States House of Representatives more than three times during any twelve year period. No person shall be elected to office as senator in the United States Senate more than two times during any twenty-four year period. Any person appointed or elected to fill a vacancy in the United States House of Representatives or the United States Senate for a period greater than one half of a term of such office, shall be considered to have been elected to serve one time in that office for purposes of this section. This limitation on the number of times a person shall be elected to office shall apply to terms of office beginning on or after January 1, 1993.

But that isn't followed today because of the 1995 Supreme Court ruling in U.S. Term Limits, Inc. v. Thornton. A similar term limits amendment had been passed in Arkansas, and the Supreme Court ruled that it was unconstitutional:

The Constitution prohibits States from adopting Congressional qualifications in addition to those enumerated in the Constitution. A state congressional term limits amendment is unconstitutional if it has the likely effect of handicapping a class of candidates and "has the sole purpose of creating additional qualifications indirectly." Furthermore, "...allowing individual States to craft their own congressional qualifications would erode the structure designed by the Framers to form a 'more perfect Union.'"

In other words, setting term limits adds a new qualification for office, and you can't have different qualifications for office between different states-- a congressman from Michigan shouldn't be held to a higher standard than a congressman from Ohio.

So when the Michigan Constitution says:

Sec. 8. Laws shall be enacted to provide for the recall of all elective officers except judges of courts of record upon petition of electors equal in number to 25 percent of the number of persons voting in the last preceding election for the office of governor in the electoral district of the officer sought to be recalled. The sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question.

... that's got to be unconstitutional too, 'cause it's just the state trying to mess around with federal offices again. Hence Walberg's lawyer's statement:

"You can quote all the Michigan constitutional and state statue provisions you want -- they don't override (the federal constitution)"

Well, not so fast. As I understand it, the Court's ruling dealt only with the term limits issue, and ruled that states couldn't impose an additional qualification for ballot access. They didn't comment on recalls which would remove members of Congress from office.

Meanwhile, the Tenth Amendment to the U.S. Constitution says:

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.

So an argument can be made that the power to remove federal officeholders from their position prior to the end of their term is granted to the states, because the Constitution doesn't explicitly say the states don't have that power.

In fact, Supreme Court Justice Clarence Thomas writes in the dissent for the U.S. Term Limits, Inc. v. Thornton decision:

The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.

One could presume that Justice Thomas would take the same approach to the recall question. The concept of recall elections only became popular in the late 19th century and early 20th, and weren't addressed by a Constitution written in 1787.

The end result being that the only real way this issue can be resolved is another ruling by the Supreme Court.

As I said before, I'm not sure how I feel about a recall, but the legal and constitutional issues are kind of fun to look at. I really can't tell you which is the right argument, and I'm sure that if there are any lawyers reading this, they'll tear my analysis apart.

Of course, the big irony is the flip-flop that Walberg has made. Congressman Walberg was once a proponent of states rights and a very limited federal government. He would have once sided with Justice Thomas and Justice Scalia-- two of the most conservative men ever to sit on the court-- and supported the Tenth Amendment and the right of the states to assert their own powers.

Now, he's flip-flopped into saying that the federal government has more rights than are mentioned in the Constitution (or, at least, that the states don't have some unmentioned rights).

Anything to stay in office, I guess.

UPDATE: While I was writing this post, the Daily Telegram published an article online which covers yesterday's hearing in much more detail. Key quote:

Lenawee County Probate Judge Margaret M.S. Noe ordered Jackson resident James Carr and attorney Eric Doster of Lansing to submit written briefs on the constitutional issue and return for oral arguments on Aug. 6. The Michigan Secretary of State’s office considers recall of a Congressman legal under state law since no court is known to have ruled otherwise, said spokeswoman Kelly Chesny.

Labels: Constitution, Recall, Tim Walberg

posted by Fitzy # 2:46 PM

Comments:

well, I guess it makes sense being no matter of Congress has ever been recalled... pretty cut and dry... But, I guess nobody follows the Constitution anymore...

# posted by

Anonymous : July 24, 2007 at 10:40 PM

The following letter was mailed to the Lenawee County Clerk on Tuesday, July 24, 2007, by the recall petitioner, James R. Carr:

Dear Ms. Bluntschly,

Following the instructions of the chairman of the board of election commissioners of Lenawee County, as orally presented to me at the hearing held in the probate courtroom, the following legal citations are presented through you to the other members of the board of election commissioners:

The following legal precedents are offered as justification for the presentation of the recall petition, authored by me, for the sole purpose of clarity of language. The right of the petitioner to present such a recall petition is embedded in the following document:

Amendment X, Constitution of the United States of America: "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."

Following this direction from the constitution of our country, the State of Michigan legislated the following, which clearly states that a member of congress from a district in Michigan is subject to recall:

Michigan Election Law, Act 116 of 1954; Section 168.149:

"Persons holding the office of representative in congress are subject to recall by the qualified and registered electors of their congressional districts as provided in chapter 36 of this act."

Further in this Michigan election law, the following direction is given to the board of county election commissioners and appears to me to be the only guidance for this body:

Michigan Election Law, Act 116 of 1954; Section 168.952, sub-paragraph (3):

"(3) The board of county election commissioners, not less than 10 days or more than 20 days after submission of it of a petition for the recall of an officer, shall meet and shall determine whether each reason for the recall stated in the petition is of sufficient clarity to enable the officer whose recall is sought and the electors to identify the course of conduct that is the basis for the recall. (Underlined)= Failure of the board of county election commissioners to comply with this subsection shall constitute a determination that each reason for the recall stated in the petition is of sufficient clarity to enable the officer whose recall is being sought and the electors to identify the course of conduct that is the that is the basis for the recall. (end underline) (Emphasis added)

This petitioner has complied with the above stated laws and direction to the best of his ability and, to his knowledge, the absence of any direction to the contrary.

Please note, that the underlined portion of paragraph (3) of Section 952 , of the Michigan Election Act 116 of 1954 stands in direct opposition to the final decision of the board at their meeting yesterday. By postponing the completion of that hearing and then designating another date, 15 days hence, the time limitation given to the board to consider the petition is exceeded. This petition was submitted by me to the Lenawee County Clerk on July 8, 2007; the response from the county clerk to me is dated July 10, 2007; the hearing held yesterday in the probate courtroom in Lenawee was on July 22, which was 12 days following receipt of the recall petition language; date set by the board of August 2, which adds an additional 10 days, which exceeds the legislated period of time allotted for the board's decision on the clarity of the language.

Further, the underlined portion above states that . . . "Failure of the board to comply shall constitute a determination that each reason for the recall stated in the petition is of sufficient clarity . . .". The guidance of the board of election commissioners of Lenawee County is needed at this time.

May I please receive an acknowledgment of the receipt of this letter and the time, date, and location of the next scheduled meeting, providing one is to be held in view of the language cited in the preceding paragraph.

Sincerely yours, /s/ James R. Carr
James R. Carr, 209 N. Bowen, Jackson MI 49202, Tel: 517-8-784-8226

# posted by

Anonymous : July 25, 2007 at 4:39 PM

this recall is a circus sideshow. hold your fire until the campaigns start.

# posted by

Anonymous : July 25, 2007 at 11:45 PM

Hey, a circus side show? Lets remember who is dying and who is being killed in this war and ultimately WHO IS RESPONSIBLE. Cindy Sheehan made a difference in her circus side show, Michael Moore did too with Farenheit 911. I think this petition is what is needed to make sure the voice of the little common folk is heard. Futile or not the message is BIG and it isn't one small voice. The question is will 50,000 people have the opportunity to be heard and will anyone who doesn't support this ideological hypocritical minister stand up and help? I know I am concerned enough to try.....Hope some of you will too. "A small group of thoughtful people could change the world. Indeed, it is the only thing that ever has".

# posted by

Concerned : August 12, 2007 at 11:10 PM

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