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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.

Originally posted to JR on Wed Jan 19, 2011 at 07:36 PM PST.

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Comment Preferences

  •  IANAL (yet) (18+ / 0-)

    ...and as such have to go study my labor law casebook, but I'll keep an eye on the thread if anyone wants to point out any obvious errors I've made.

    ‎"Our greatest asset as advocates is a deep cognizance of our own ignorance, plus a willingness to do something about it." -Joseph Mitchell Kaye, 1966.

    by JR on Wed Jan 19, 2011 at 07:36:39 PM PST

  •  There is precedence. Who was senator wheeled in (3+ / 0-)

    after her had a stroke?  I think this congressman missed years of votes.

    Also, the congressman from my district (Dan Burton R, IN) has no illness or any other kind of excuse for not being present for voting, but has the worst attendance than anyone in the house.  Sadly, the wing-nuts in this district still elected him to return to Washington.

    •  Bird, eastMan and pepper? (1+ / 0-)
      Recommended by:

      I am pretty sure senator eastmon? Easton? Was brought in on a stretcher,
      So was claude pePper and I think jamie shorten

      George Bush is Living proof of the axiom "Never send a boy to do a man's job" E -2.25 S -4.10

      by nathguy on Thu Jan 20, 2011 at 06:52:25 AM PST

      [ Parent ]

  •  Agreed... (3+ / 0-)

    as you say, it would be politically ruinous for the Republicans to try, and there's absolutely nothing for them to gain anyway - the GOP already holds the House.  Maybe, MAYBE they'd be that fricking stupid if replacing Giffords would mean the difference between the majority and the minority, but it doesn't.  Boehner and Co. are going to be able to pass whatever House legislation they want regardless.  It's the Senate and the White House that the GOP doesn't have, and the AZ seat affects neither.

    Plus, a House vacancy is filled by a special election, not by a Brewer appointment, so the GOP really couldn't be sure that a Republican would win the seat, especially given the optics of the situation.  Whoever the Republicans put up would automatically look like an asshole, and meanwhile the Democrats would recruit one of Giffords's family - the spouse is the traditional nominee, and Mark Kelly, with his astronaut bona fides, would easily win.  But if he didn't want to do it, then the Democrats would get one of Giffords's relatives.

    This is just a moot issue all the way around.  Giffords is reported to be recovering at a remarkable pace and has a wonderful prognosis, and she is going to be given every chance to resume her duties.  Outside of a hateful few, pretty much the entire country wants the fairy tale ending of Giffords's triumphant return to the House.  There will only be a vacancy if Giffords herself decides to step down, and nobody is going to push her to do that.  Her staff is continuing constituent services and her fellow AZ Democratic representative Grijalva is there to look after local interests, so things are covered.

    •  Just curious (0+ / 0-)

      Above it is stated:

      a House vacancy is filled by a special election, not by a Brewer appointment

      Brewer is of course the Governor of Arizona. My question is about a vacancy replacement (which I agree is unlikely, or at least premature, here). Is a special election automatic when a vacancy does occur? Is this determined by federal law or are the states allowed their own processes? It seems like governors have filled vacancies in the past, am I mistaken?

  •  It's even more basic than that! (5+ / 0-)

    The statute that was the basis of the Washington Post article is Title 38, Section 291 of the Arizona Revised Statutes, which provides in pertinent part as follows:

    An office shall be deemed vacant from and after the occurrence of any of the following events before the expiration of a term of office:

                .    .    .    .

    1. The person holding the office ceasing to discharge the duties of office for the period of three consecutive months.

    The first question is whether this is an "office" within the meaning of the statute itself, and the answer is that it's not.  There's a definition section at the beginning of Title 38, and the very first definition in that section is as follows:

    38-101. Definitions

    In this title, unless the context otherwise requires:

    1. "Office", "board" or "commission" means any office, board or commission of the state, or any political subdivision thereof, the salary or compensation of the incumbent or members of which is paid from a fund raised by taxation or by public revenue.

    A member of Congress is a federal officer, not a state or local one, and so the statute doesn't even purport to apply to members of Congress.  The fact that the article in the Post made it past an editor says a great deal about just how far the standards of a once-great newspaper, and indeed many newspapers, have fallen.

    Still PROUD to be a Democrat!

    by leevank on Wed Jan 19, 2011 at 09:44:33 PM PST

    •  Great catch, and I agree. (0+ / 0-)

      Excellent point.

      ‎"Our greatest asset as advocates is a deep cognizance of our own ignorance, plus a willingness to do something about it." -Joseph Mitchell Kaye, 1966.

      by JR on Wed Jan 19, 2011 at 10:00:08 PM PST

      [ Parent ]

      •  For what it's worth, in an article carried ... (1+ / 0-)
        Recommended by:

        in one of the local Arizona media (which I unfortunately can't locate right now), it was reported that the Arizona Secretary of State and the former Dean of the Arizona State University School of Law agreed with my analysis.  (Actually, it reported their analysis, which was the same as mine.  I'm not claiming they're agreeing with mine, which I'm sure they'd never heard of.)  It was reported that the only people even asking about this were reporters basing their inquiry on the Washington Post article.

        I really think the reporter who wrote this article, and the editor who okayed publishing it without running it by a lawyer, should be on a very short leash.  Unless Orly Taitz is the Post's legal counsel, I can't imagine that they ran it by a lawyer, because one of the first things that you learn in first year legal research is that when you're discussing the applicability of a statute, YOU'VE GOT TO READ THE DEFINITIIONS SECTION.  In all seriousness, if I were teaching a legal research course to first year law students, and one of them produced the analysis in the Washington Post article, they'd be looking at a D (at the very best) for that assignment.

        Still PROUD to be a Democrat!

        by leevank on Wed Jan 19, 2011 at 10:18:30 PM PST

        [ Parent ]

    •  My groggy reading (0+ / 0-)

      of the statute is that "state" likely only refers grammatically to "board or commission" (though the next clause about "political subdivision" does confuse that a bit). That said, I agree with JR that this comes down to the U.S. Constitution (as interpreted by the term limits case).

      Ok, so I read the polls.

      by andgarden on Thu Jan 20, 2011 at 05:23:07 AM PST

      [ Parent ]

  •  Let's hope the Congresswoman is back before (1+ / 0-)
    Recommended by:
    Flaming Liberal for Jesus

    the 3 month period. However, if she is not, and was shot in the line of duty, it might have an very different interpertation. I doubt the citizens of AZ, especially her district in Tucson will do anything to replace her. Since she is able to understand and communicate, couldn't she pass on her wishes to her chief of staff to place her vote, these are extrordinary circumstances, or at least vote electronically from the rehab, this is 2011 and computers play an important role in our government.

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