Tea Party activists might be smarter than some would like to think. And depending upon the outcome of a court case later this month, they might also play a role in setting legal precedent.
The Constitutional Question
When the parties present their oral arguments on February 26th, much of the case may come down to how it is framed. Attorneys for both Senator Menendez and for NJ state election officials have focused their briefs solidly on one key constitutional point:
“As the US Constitution reserves to the United States Senate the power to expel and determine the qualifications of its own members, New Jersey has no authority to recall a US Senator.”
While this is a premise that has agreement among legal scholars, it is also largely debated – because it has never actually been definitively ruled in a court of law. Many loosely related rulings or references to debate at the Constitutional Convention are often cited, though, as the NJ State Attorney General herself concedes, “there are no federal decisions squarely on point.” Most importantly, NJ actually changed its state Constitution in to specifically permit the recall of a US Senator after a ballot vote in 1993. In the absence of any definitive ruling that renders the state’s recall law unconstitutional, other legal experts maintain that the Committee may very well have a legitimate case to plead.
The Committee’s attorneys argue that the constitutional issue raised by the state and Menendez attorneys is not ripe anyway. Since the recall notice was denied before the petition could circulate, before it could be certified that the petition met the minimum number of signatures required, before a recall election could be conducted, and before an election result could even be certified, no one has even made any demand yet that a recall order be issued against Senator Menendez.
They contend that the State is focused on the wrong issue:
“The State, asserting only that it has no power to issue a judicially enforceable order to recall a U.S. Senator, argues the Committee has failed to demonstrate a likelihood of success on the merits. However, the State focuses on the wrong issue.
This issue before this Court concerns the State’s content-based restriction on the Committee’s right to freely exercise core political speech, not the dispute over whether a recall order issued by the Secretary of State is judicially enforceable as against Senator Menendez or the United States Senate.
The Committee has clearly shown a likelihood of its ultimate success on the sole ripe Constitutional issue before the Court, i.e., the right to freely engage in core political speech.”
So, while the attorneys for the state and for Senator Menendez are primarily focused on the Constitutional question of who has the right to recall a US Senator, attorneys for the committee are focused on the constitutional question of First Amendment rights. FULL STORY