Page:Recall of Legislators and the Removal of Members of Congress from Office.pdf/11

 term of a sitting Member of the United States Congress, and such Member is beyond the reach of the people of the state “until the next election”: "In keeping with the complexity of our federal system, once the representatives chosen by the people of each State assemble in Congress, they form a national body and are beyond the control of the individual States until the next election."

The dissent in the Term Limits case thus conceded that, regardless of their view of the authority of each state in setting qualifications or conditions on the “selection of Members of Congress” under the Tenth Amendment, once a Member of Congress is seated, such a Member is not subject to recall, and the only way to remove that Member prior to the expiration of his term is expressly delegated to that Member’s house of Congress in the expulsion clause of Article I, Section 5. As again explained by Justice Thomas, even if a state wishes to “punish one of its Senators … for his vote on some bill … The Senator would still be able to serve out his term; the Constitution provides for Senators to be chosen for 6-year terms … and a person who has been seated in Congress can be removed only if two-thirds of the Members of his House vote to expel him, §5, cl. 2.” The dissent explained that an individual state could not “slash” or threaten to slash the salary of a Member of Congress if the state disagreed with the action of the Member since “such a power would approximate a power of recall, which the Framers denied to the States when they specified the terms of Members of Congress. The Framers may well have thought that state power over salary, like state power to recall, would be inconsistent with the notion that Congress was a national legislature once it assembled.”

Tenth Amendment
As to the Tenth Amendment and the “reserved” authority of the states, the United States Supreme Court has clearly explained that determining qualifications and terms for federal offices, created within the United States Constitution, were “not part of the original powers of sovereignty that the Tenth Amendment reserved to the States,” and thus whatever authority states have over the terms, qualifications, and elections of federal officers must be a “delegated” authority from the Constitution. Such authority could not be a “reserved” power of the states, since the states could not “reserve” a power it did not have as part of its original sovereign authority, that is, a power relative to something which did not exist before its creation in the Constitution: "Petitioners’ Tenth Amendment argument misconceives the nature of the right at issue because that Amendment could only “reserve” that which existed before. As Justice Story recognized, “the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them …. No state can say, that is has reserved, what it never possessed.” 1 Story §627."

Re-emphasizing this meaning of the Tenth Amendment’s “reserved” authority vis-a-visvis-à-vis [sic] federal officials, the Court later explained in Cook v. GralickGralike [sic]: Rh