ACRU General Counsel Peter Ferrara wrote a column appearing on BigGovernment.com on March 3, 2010.

The recall of New Jersey Senator Robert Menendez took a step forward yesterday with a promising oral argument in New Jersey state court. The New Jersey Constitution expressly provides for the recall of members of Congress representing the state in a provision adopted by a 75% favorable vote of the people in 1995. The New Jersey state legislature then expressly provided by statute for the procedures for such a recall.

The Committee to Recall Robert Menendez filed papers for the circulation of their petitions to begin last September. But the Secretary of State, who has no authority to issue rulings on constitutional questions, nevertheless refused to approve them on the grounds that her own New Jersey state constitution must be unconstitutional under the federal constitution, which she said did not allow such recalls.

The three judge appellate panel considering yesterday whether the recall should proceed expressed reluctance to declare a provision of their own state’s constitution duly adopted by the people null and void. They also seemed receptive to the argument by the recall committee that they were only asking the court for an order for the circulation of petitions to proceed, and there is nothing in the U.S. Constitution that prohibits that. To the contrary, the U.S. Constitution protects the political expression involved in signing a petition calling for the recall of an elected official, and the petitioning of government for the redress of grievances.

If the recall committee gets the required signatures from over a million citizens calling for the recall of Senator Menendez, and the majority of citizens vote to recall him in a recall election, and the Senator decides to thumb his nose at the will of the people anyway, then the issue of whether state recalls of members of Congress are constitutional under the U.S. Constitution would be presented to the courts. But until then all that the New Jersey recall committee is asking for is the freedom of political expression involved in gathering recall petition signatures, and the U.S. Constitution protects rather than prohibits that.

Based on the oral argument yesterday, the recall effort in New Jersey stands a good chance of getting the go ahead for now. That could have a powerful political effect in Washington right away. The law in 9 states provides for the recall of members of Congress, and those states include 12 incumbent Democrat Senators who are not otherwise up for reelection this year. So if the New Jersey courts allow the recall there to proceed, that means all 12 of these Democrat incumbents could be added to the ballot this year, putting majority control of the Senate even more in play.

That could cause Congressional Democrats to be more reluctant to follow Barack Obama off a political cliff. The 12 Democrat Senators potentially on the hook for a recall election will be more likely to decide they better spend more time listening to their voters than to Barack Obama’s ideological entreaties. That could be the final straw that stops Obamacare, in accordance with the will of the people.