The Washington Post ran a story on Monday suggesting that Rep. Gabrielle Giffords might be stripped of her seat in Congress, due to a provision of Arizona law that deems a seat vacant in the event that the occupant fails to discharge the duties of office for three consecutive months.
Buddabelly mentioned another such story from KOLD, writing (in a must-read, heartwarming diary currently atop the Rec List) "More good news Az. republicans have no plans to attempt to fill her seat though legally able to after 90 days....."
Let me explain why this is wrong, and we needn't worry:
States can enact all sorts of laws on all manner of issues, from voting rights to abortion. Sometimes, however, those laws run afoul of the Constitution. If a state passed a ban on all abortions, the courts would hold that ban unenforceable. If a state said you have to be 30 to vote, they could write that law in stone and it wouldn't matter: it could not be enforced as written. If a state authorized slavery, or outlawed all firearms, or wrote that all crimes would be punishable by life in prison, those laws would not be enforced.
And that's great news for people like Bill Young.
Bill Young is a Congressman from Florida, and has been since the 1970s. His district's voters continue to re-elect him every two years, and he continues to serve them in Washington. In fact, he's currently the longest-serving Republican in Congress.
But ever since 1992, there's been a provision in the Florida constitution setting term limits for U.S. Representatives and Senators (as well as members of the state legislature, the Lieutenant Governor, and all cabinet posts). The maximum any elected official can serve in a single office under that law is eight years.
So why is Rep. Young still allowed to serve three decades past his state's constitutionally mandated retirement date? Or how about Rep. Ileana Ros-Lehtinen, first elected in 1988? What's she doing in office, in blatant violation of state law?
The answer is actually pretty simple: the Florida term limit law is invalid as applied to federal officers. Reps. Ros-Lehtinen and Young have nothing to worry about.
But that doesn't mean the invalid law has disappeared from the books!
No, dead-letter law exists in any number of states. A future Supreme Court majority might overturn an old precedent, or the Constitution might be amended, making the previously unenforceable law kosher to enforce. But these are very rare moments. And while the Court may from time to time reinterpret the Constitution's text, I doubt they would be willing to reinterpret the basic principles of federalism. The Constitution is the supreme law of the land: it tells us so itself! And the Constitution sets the rules that lawmakers must follow, including the qualifications for federal elected offices.
If the Courts won't let Congress impose additional qualifications for office, there's no way on earth they'll let the states do it. Imagine if a state allowed its governor to unilaterally recognize a vacancy in Congress whenever he felt like it. A hapless Member could take off from Dulles International Airport a Congressman and land back home a pensioner. It's simply unworkable, and it's constitutionally unsound.
Moreover, look at the Arizona law itself. It says a vacancy exists when an officer fails to "discharge the duties of office" for three months. I hate to be crass about it, but there isn't really a way for Representatives to not "discharge the duties of office" in most circumstances, since there are really only three affirmative duties the Constitution places on Members of Congress. "The House of Representatives shall chuse their Speaker and other Officers,""The Senators and Representatives before mentioned...shall be bound by Oath or Affirmation, to support this Constitution," and "The Congress shall assemble at least once in every year." Beyond that, it really is just a matter of (putting it harshly) being able to fog a mirror. Sure, Congress has power to do certain things, and is enjoined from doing others, but as for affirmative obligations of office, those three are it, and Giffords already fulfilled all three during the current 112th Congress (famously casting a vote for Rep. John Lewis to be Speaker). Beyond that, unless the Cabinet and Vice President declare the President unfit and he disagrees, Members of Congress can do pretty much whatever.
Finally, it doesn't take David Axelrod to know that the fallout from trying to strip Giffords of her seat would be devastating to anyone who tried. Jan Brewer may not be the sharpest tool in the shed, but even she understands that.
Giffords's seat is hers until she resigns, is expelled from Congress, or loses an election. No reason to get excited.