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Administrative and Judicial Decisions on State Recall Laws
State attorneys general, as well as state judicial bodies, when considering the merits of the issue of a proposed recall of a Member of Congress under state provisions have consistently found that such recall is neither provided for, permitted by, nor is it consistent with the provisions of the U.S. Constitution. The attorney general of Oregon in 1935, for example, ruled that the state’s recall provisions could not apply to a Member of Congress who is not actually a state official, but who holds his office pursuant to the U.S. Constitution and is a federal constitutional officer. The opinion found that such recall provisions would interfere with the Congress’s exclusive constitutional authority over the elections and qualifications of its own Members, noting that the “jurisdiction to determine the right of a representative in Congress to a seat is vested exclusively in the House of Representatives … [and] a Representative in Congress is not subject to recall by the legal voters of the state or district from which he was elected.”

In Nevada, in 1978, an attorney general opinion found that “there is no provision in [the U.S. Constitution] for the removal of federal legislative officers prior to the end of their terms other than Article I, Section 5,” and “[t]herefore, only the United States Senate or the House of Representatives can remove its own Members prior to the end of the terms for which they were elected, pursuant to Article I, Section 5.” In so concluding, the attorney general ruled that a recall petition could not be filed for “federal legislative officers, such as United States Senators” under the Nevada provision authorizing recall for “Every public officer in the State of Nevada.”

In 1994, the attorney general of Kansas, finding that “Members of congress are neither state officers nor local officers” as defined by Kansas statutes, and finding that the U.S. Constitution “reserves to the houses of congress” the authority to punish and remove from office their own Members by way of expulsion, provided a formal opinion that U.S. Representatives and Senators could not be “recalled” under state provisions. Referencing the expulsion clause in the Constitution in answering “10th Amendment” arguments that states have the “reserved” authority to cut short the term of a Member of the U.S. Congress, the attorney general found: "As such power has been delegated to the federal government by the United States constitution, the United States constitution does not provide for any reservation of authority to the states to remove from office congressional officeholders." Rh