Thread: NE Supreme Court Fremont Ordinance and Removal of Sen Ben Ne

Nebraskans Advisory Group (NAG) Susan Smith nagsusansmith@yahoo.com

ACTION ALERT: This email contains three items that require action. Please help pass on the information. Thank you ALL for everything YOU do.

ITEM #1: Nebraska Supreme Court, Thursday, January 7, 2010 @ 9a.m. - The State Capitol building in Lincoln - 2nd floor. Hear arguments on the legality of Fremont's proposed illegal immigration ordinance. Fremont is appealing Judge Samson's ruling that he had NO legal authority to BLOCK a special election on a measure to bar the hiring of illegal aliens and the renting of property to them. Fremont residents circulated a petition, collecting 3,300 valid signatures, calling for a special election to consider the ordinance. Fremont city council has been trying to STOP the citizens from their rightful special election. The petitioners, Jerry Hart, Wanda Kotas and John Wiegert are represented by Kris W. Kobach, a law professor at the University of Missouri in Kansas City. NOTE: Bad weather is expected, but unless the Governor calls a "Snow Day", the hearing is expected to begin as scheduled.

ACTION: 1) Attend the hearing. 2) Encourage everyone you know in the Lincoln area to attend 3) Offer a donation to help cover Kris W. Kobach's expenses 4) If unable to attend you may watch the proceedings on your computer at www.netnebraska.org/publicmeeting/capitolbuilding.html or after the hearing you may watch the archive at www.supremecourt.ne.gov

ITEM #2 : REMOVAL OF SENATOR BEN NELSON BY EXPULSION.
Staff members in Senator Mike Johanns' D.C. office continue to give out mis-information. Today when I called to follow up on my request, I was told this procedure had to be done at the state level. UNBELIEVABLE. I requested that someone look over the Constitutional reference I emailed them 2 weeks ago and to let me know whether or not Sen Johanns was going to support this action and because of the runaround or "good ole boy network" Nebraskans have been getting on this issue that I wanted a response within 3 hours. Well, no shock that I did NOT receive a phone call. SO, THIS IS WHAT WE NEED TO DO......

ACTION: IN NEBRASKA: 1) We need about 50,000 phone calls to Sen Johann's office requesting that he begin proceedings for REMOVAL OF SENATOR BEN NELSON FROM CONGRESS BY EXPULSION. 2) Request a response from Senator Johanns 3) Have each adult person in your household make a separate phone call DO NOT LET STAFF MEMBERS DETER YOU OR GIVE YOU FALSE INFORMATION - HOLD YOUR GROUND. 4) Follow up within a few days if you have not received a phone call or email from Johanns' office. OTHER STATES: Leaders of organizations, please forward this email to your members asking they contact THEIR Senators to Expel Sen. Ben Nelson. WE NEED HELP, WE NEED TO APPLY PRESSURE. (Constitutional Reference is at the end of this email)
TOLL FREE CAPITOL SWITCHBOARD PHONE NUMBERS:
1-866-220-0044 or 1-877-851-6437 or direct to Johanns 202-225-0100
Email Address: mike_johanns@johanns.senate.gov

ITEM #3: Since Sen Ben Nelson has deserted Nebraskans like a rat deserting a ship.......a few of us would like to wear RAT masks and tails at any and every event Senator Nelson is scheduled to attend.

ACTION: If you would like to join us - we are figuring this is a costume worth the investment, because we should be able to wear them all year round - please send me an email or call me letting me know how many masks and tail you need. Then I will contact 2 retail stores to get the best pricing and order info and we will place our order - or you can make your own by googling "rat mask and tail". 2) Send me an email whenever you hear of an event Sen Nelson is going to be at - so we can get our "rat" brigade out to the site.

Summary

Under the United States Constitution and congressional practice, Members of Congress may have their services ended prior to the normal expiration of their constitutionally established terms of office by their resignation or death, or by action of the House of Congress in which they are a Member by way of an "expulsion," or by a finding that in accepting a subsequent public office deemed to be "incompatible" with congressional office, the Member has vacated his congressional seat.

Under Article I, Section 5, clause 2, of the Constitution, a Member of Congress may be removed from office before the normal expiration of his or her constitutional term by an "expulsion" from the Senate (if a Senator) or from the House of Representatives (if a Representative) upon a formal vote on a resolution agreed to by two-thirds of the Members of the respective body present and voting. While there are no specific grounds for an expulsion expressed in the Constitution, expulsion actions in both the House and the Senate have generally concerned cases of perceived disloyalty to the United States, or the conviction of a criminal statutory offense which involved abuse of one's official position. Each House has broad authority as to the grounds, nature, timing, and procedure for an expulsion of a Member. However, policy considerations, as opposed to questions of authority, have appeared to restrain the Senate and House in the exercise of expulsion when it might be considered as infringing on the electoral process, such as when the electorate knew of the past misconduct under consideration and still elected or re-elected the Member.

As to removal by recall, the United States Constitution does not provide for nor authorize the recall of United States officers such as Senators, Representatives, or the President or Vice President, and thus no Member of Congress has ever been recalled in the history of the United States. The recall of Members was considered during the time of the drafting of the federal Constitution in 1787, but no such provisions were included in the final version sent to the states for ratification, and the specific drafting and ratifying debates indicate an express understanding of the Framers and ratifiers that no right or power to recall a Senator or Representative from the United States Congress exists under the Constitution. Although the Supreme Court has not needed to directly address the subject of recall of Members of Congress, other Supreme Court decisions, as well as the weight of other judicial and administrative decisions, rulings and opinions, indicate that (1) the right to remove a Member of Congress before the expiration of his or her constitutionally established term of office is one which resides exclusively in each House of Congress as expressly delegated in the expulsion clause of the United States Constitution, and (2) the length and number of the terms of office for federal officials, established and agreed upon by the states in the Constitution creating that Federal Government, may not be unilaterally changed by an individual state, such as through the enactment of a recall provision or a term limitation for a United States Senator or Representative. Under Supreme Court constitutional interpretation, since individual states never had the original sovereign authority to unilaterally change the terms and conditions of service of federal officials agreed to and established in the Constitution, such a power could not be "reserved" under the 10th Amendment.



Recall of Legislators and the Removal of Members of Congress from Office

Introduction

This report discusses briefly the manner in which a Member of Congress may be removed from office by "expulsion," and then examines the issue of "recall" of legislators.

The term of office established in the United States Constitution for a United States Senator is six years, and for a Representative in Congress, two years.1 Under the Constitution and congressional practice, Members of Congress may have their services ended prior to the normal expiration of their constitutional terms of office by their resignation, death, or by action of the House of Congress in which they sit by way of an expulsion,2 or by a finding that a subsequent public office accepted by a Member is "incompatible" with congressional office and that the Member has consequently vacated his seat in Congress.3 As noted in the rules and manual of the House of Representatives with respect to the way in which vacancies may be brought about: "Vacancies are caused by death, resignation, declination, withdrawal, or action of the House in declaring a vacancy as existing or causing one by expulsion."4

Although considered in the Federal Convention of 1787, there was never a provision adopted in the United States Constitution for the "recall" of elected federal officials, such as Members of Congress, and thus no Member of the Senate or the House of Representatives has ever been recalled in the history of the United States. As noted by the United States Supreme Court, individual states never possessed the original sovereign authority, and thus could not have "reserved" such power under the 10th Amendment, to unilaterally change the terms, qualifications, and conditions of service of federal officials created in the United States Constitution.5

Expulsion

Members of Congress may be involuntarily removed from office before the normal expiration of their constitutional terms by an "expulsion" from the Senate (if a Senator) or from the House of Representatives (if a Representative) upon a formal vote on a resolution agreed to by two-thirds of the membership of the respective body who are present and voting.6 The United States Constitution expressly provides at Article I, Section 5, clause 2, that: "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."

An expulsion is a process, often considered inherent in parliamentary bodies, which is characterized as a self-disciplinary action necessary to protect the integrity of the institution and its proceedings.7 An expulsion is different from an "exclusion." An "exclusion" is not a disciplinary matter against a current Member, but rather a decision not to seat a Member-elect, by a simple majority vote of the House or Senate, upon a finding that the Member-elect is not entitled to a seat either because of a failure to meet the constitutional qualifications for office (age, citizenship and inhabitancy in the State), or that the Member-elect was not "duly elected."8

Members of Congress are not removed by way of an "impeachment" procedure in the legislature, as are executive and judicial officers, but are subject to the more simplified legislative process of expulsion.9 A removal through an impeachment requires the action of both Houses of Congress?"impeachment in the House and trial and conviction in the Senate; while an expulsion is accomplished merely by the House or Senate acting alone concerning one of its own Members, and without the constitutional requirement of trial and conviction.

An expulsion from the Senate or the House of Representatives is considered the most severe form of congressional self-discipline. While there are no specific grounds for an expulsion expressed in the Constitution, expulsion actions in both the House and the Senate have generally concerned cases of perceived disloyalty to the United States Government, or the conviction of a criminal statutory offense which involved abuse of one's official position.10 In the United States Senate, 15 Senators have been expelled, 14 during the Civil War period for disloyalty to the Union (one expulsion was later revoked by the Senate),11 and one Senator was expelled in 1797 for other disloyal conduct.12 In the House of Representatives, five Members have been expelled, including three during the Civil War period for disloyalty to the Union.13 Two other House Members have been expelled, one in 1980 after conviction of conspiracy and bribery in office, and the other Member in 2002 after conviction for conspiracy to commit bribery, receiving illegal gratuities, fraud against the Government in receiving "kickbacks" from staff, and obstruction of justice.14 Although actual expulsions from Congress are fairly rare, it should be noted that several Members of Congress have chosen to resign from office rather than face what was apparently perceived as an inevitable congressional expulsion.15

The authority within the Constitution of each House of Congress to expel one of its own Members is unrestricted on the face of the constitutional language, except as to the requirement for a two-thirds approval. Although such authority appears to be extensive as to the grounds, nature, timing, and the procedure for the expulsion of a Member,16 policy considerations, as opposed to questions of power or authority, may have generally restrained the Senate and the House in the exercise of their authority to expel. Such restraint has been particularly evident when the conduct complained of occurred prior to the time the Member was in Congress,17 or occurred in a prior Congress, when the electorate knew of the conduct and still elected or re-elected the Member.18 The apparent reticence of the Senate or House to expel a Member for past misconduct after the Member has been duly elected or re-elected by the electorate, with knowledge of the Member's conduct, appears to reflect in some part the deference traditionally paid in our heritage to the popular will and election choice of the people.19 In 1914, the Judiciary Committee of the House detailed various policy considerations in expulsions for past misconduct:

In the judgment of your committee, the power of the House to expel or punish by censure a Member for misconduct occurring before his election or in a preceding or former Congress is sustained by the practice of the House, sanctioned by reason and sound policy and in extreme cases is absolutely essential to enable the House to exclude from its deliberations and councils notoriously corrupt men, who have unexpectedly and suddenly dishonored themselves ....

But in considering this question and in arriving at the conclusions we have reached, we would not have you unmindful of the fact that we have been dealing with the question merely as one of power, and it should not be confused with the question of policy also involved. As a matter of sound policy, this extraordinary prerogative of the House, in our judgment, should be exercised only in extreme cases and always with great caution and after due circumspection, and should be invoked with greatest caution where the acts of misconduct complained of had become public previous to and were generally known at the time of the member's election. To exercise such power in that instance the House might abuse its high prerogative, and in our opinion might exceed the just limitations of its constitutional authority by seeking to substitute its standards and ideals for the standards and ideals of the constituency of the member who had deliberately chosen him to be their Representative. The effect of such a policy would tend not to preserve but to undermine and destroy representative government.20

The authority to expel has thus been used cautiously, particularly when the institution of Congress might be seen as usurping or supplanting its own institutional judgment for that of the electorate as to the character or fitness for office of someone the people have chosen to represent them in Congress.21

Recall

In some states, state legislators and other state or local elected officials may be removed from office before the expiration of their established terms not only by action of the legislature itself through an expulsion (or for executive officers, through an "impeachment" and conviction by the legislature), but also by the voters through a "recall" election procedure. While an expulsion is an internal authority of legislative bodies incident to their general powers over their own proceedings and members, recall is a special process outside of the legislature itself, exercised by the people through a special election. Recall provisions for state or local officers became popular in the "progressive movement," particularly in the western and plains states, in the early part of the 20th Century.22

This is great...get on it Nebraskans and good luck!