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Josh Chafetz Guest-Blogging:

I'm delighted to report that Josh Chafetz will be guest-blogging here next week. Josh is a law professor at Cornell, a scholar of British and American legal history, the author of Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions (Yale Univ. Press 2007), and cofounder of OxBlog.

Josh's posts will focus on his new article, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, which makes the surprising assertions that, (1) while the Constitution gives Senators a right to resign their seats, Representatives have no such right, but may only quit if the House lets them, and (2) there are good reasons for the House to change its rules so that resignations have to be accepted by vote of the House to become effective. Long-time Conspiracy readers may recognize that this is Josh's second guest-blogging appearance here; he and his OxBlog cobloggers guest-blogged here nearly five years ago.

Malvolio:
while the Constitution gives Senators a right to resign their seats, Representatives have no such right, but may only quit if the House lets them
Wouldn't the 13th Amendment prohibit the House from forcing a member to continue in his job as Representative against his will?
7.18.2008 7:06pm
Josh Chafetz (www):
Malvolio,

The <A rel="nofollow" href="http://ssrn.com/abstract=1125917">article</a> addresses the Thirteenth Amendment issue at pages 53-54.
7.18.2008 8:10pm
MikeRosin (mail):
If members of the House of Representatives have no right to resign their seats then neither do members of the Senate since the 17th amendment was ratified.

Here are the Vacancy clauses from Article I as drafted by the Convention and ratified by the states.

"When vacancies happen in the Representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies." (Art. I, sec. 2, cl. iv)

"if vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies." (Art. I, sec.3, cl. ii)

Consider the second clause of the 17th amendment.

"When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct."

Clearly, no one would argue that this text empowers a contemporary governor to make an interim Senate appointment unless the state legislature has granted the governor such a power. In contrast, under the original text of Article I, sec. 3, the governor did not need to be so enabled by the state legislature.

If we recognize this obvious change in the revised Senate vacancy clause, must we not also recognize the change in the vacancy language itself, its omission of an explicit reference to resignation, and read that part of the 17th amendment in exactly the same fashion as we read the still effective text of Art. I, sec. 2, cl. iv? If Chafetz is right, and I think he is, then the original text of Art. I, sec.3, cl. ii that explicitly allows for senatorial resignation has been superseded by text in the 17th amendment that clearly follows the text of Art. I, sec. 2, cl. iv.

"When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies." (changes highlighted.)

It's certainly hard to imagine anyone arguing that changing "in the representation from any state" to "in the representation of any state in the Senate" changes the meaning of the phrase.

I don't claim that Congress intentionally chose to remove a right to resign from the Senate. A review of the Congressional Record would be useful. Actually, I'd bet that it would show a complete lack of concern on the issue.

On page 47 Chafetz notes

"However, it should also be noted that the reasons for treating the House and Senate differently with regard to resignations have become less salient over time, and especially with the passage of the Seventeenth Amendment."

I agree and see only two operative distinctions remaining.

1. Term length (as noted at 55 n.342)
2. Two senators per state versus one Representative per district, which, in some cases, comprises the entire state.

Neither of these is sufficient to ground a difference. Indeed, the Framers view of the Senate as a continuing body whose stability would offset the fractious nature of the House provides some ground for opposing senatorial resignation except in appropriate circumstances.

I had been unaware of the planned resignation of Rep. Wynn following his primary defeat in April so that he would be able to become a lobbyist 6-7 months earlier than if had had served out his term. I was aware of Senator Lott's resignation in December 2007 so that he would not have to wait two years two become a lobbyist had he waited until after then end of that month (when the disability increased from one year to two years.) Surely, Senator Lott's case is at least as troubling as Rep. Wynn's. Indeed, I find it more so, Senator Lott was not quite 17% of the way through his term. At least Rep. Wynn was 70% of the way through his term when he resigned on May 31. If I lived in Mississippi and weren't a Trent Lott detractor I would feel as though he had skipped out on me, especially since he had nearly a year to contemplate a graceful retirement following Hurricane Katrina until his reelection in Nov. 2006.

The Framers would have been disgusted by the idea of a Representative or a Senator resigning a public trust in order to be able to line his or her pockets as a lobbyist.
7.18.2008 9:11pm
OrinKerr:
Welcome back, Josh -- I look forward to your posts.
7.19.2008 9:32am
Josh Chafetz (www):
Thanks, Orin!
7.19.2008 1:23pm
ReaderY:
1. I find it hard to understand how the 17th Amendment changed could have procedures regarding the House of Representatives. (It wasn't about that subject.) And the text of Article I specifically refers to vacancies by resignations. It would appear that all the 17th Amendment was intended to do was to provide for filling Senate vacancies by special elections as rthe default with gubernatorial appointment an option. I don't see that it changes any existing language about how vacancies might occur.

2. Even if there should be an abstract right to refuse a resignation, as a voter I wouldn't want that right exercised. Why would I want to be represented by someone who doesn't want to be there and may be distracted from doing a good job?
7.19.2008 11:32pm