Josh Chafetz (Cornell) has posted Leaving the House: The Constitutional Status of Resignation from the House of Representatives on SSRN. Here is the absract:
Do Members of the House of Representatives have a constitutional right to resign their seats? This Article seeks to use that question as a window onto broader issues about the relationship between legislators and citizens and the respective roles of liberalism and republicanism in the American constitutional order. The Constitution explicitly provides for the resignation of Senators, Presidents, and Vice Presidents, but curiously, it does not say anything about resigning from the House of Representatives. Should we allow the expressio unius interpretive canon to govern and conclude that the inclusion of some resignation provisions implies the impermissibility of resignation where there is no such clause? Or should we consider this a meaningless variation?
This Article examines how Members left (or were prevented from leaving) the House of Commons, the colonial American legislatures, the early state legislatures, and the Continental Congress and concludes that the background assumption at the Founding was that legislative seats could not be resigned. Moreover, the scant available evidence from the Constitution's drafting shows that the Founders understood there to be a difference between the House and Senate with regard to resignation. The Article presents several reasons, based on the different institutional designs and functions of the two houses, why this might have been the case, including different term lengths and methods of appointment and the early Senate's role as a quasi-ambassadorial body. From this historical evidence, the Article suggests that the House has the power to prevent its Members from resigning.
However, the House of Representatives has never exercised this power. After surveying the debates over resignation in the early Congresses, the Article concludes by considering policy reasons for requiring Members to get the House's permission in order to quit their seats. Specifically, the Article offers two paradigm cases for returning to the original understanding. The first case deals with Members who wish to resign while they stand accused of ethical transgressions; the second case deals with Members who wish to leave because legislative service has ceased to be convenient for them. The Article argues that both cases point toward the need for a return to a previous, more republican, understanding of resignations.
Very interesting paper and highly recommended!
I am somewhat obsessed with theories of constitutional interpretation and construction at the moment, so I read this paper with an eye towards the theoretical issues. In particular, I am interested in the question whether the original meaning of the Constitution allows for resignation, or whether it leaves that decision to the House. Chafetz actually has very little to say about this question. His text is ambiguous on this point. The most extensive discussion comes in footnote 6:
“Expressio unius” is short for “expressio unius est exclusio alterius”—the canon which holds that the expression of one thing suggests the exclusion of others. See WILLIAM D. POPKIN, A DICTIONARY OF STATUTORY INTERPRETATION 88-91 (2007); 2A NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION 304-33 (6th ed. 2000). So, for example, when a parent tells a child who is ogling a table full of desserts that she may have one cookie and one brownie, it is understood to imply that the child may not also have two pieces of pie and a cupcake. Or, to take the question we are presently concerned with, the inclusion of provisions for the resignation of some government officials can be read to imply that officials for whom no such provision exists may not resign.
When I first read this passage, I thought that Chafetz might be suggesting that the constitutional text implies that members of the House many not resign. After email correspondence, I now see that Chafetz recognizes that there are two possible inferences from the juxtaposition of the Senate and House vacancy clauses. One inference is that Senate members may resign and House members may not. The other inference is that Senate members must be allowed to resign, but that the House may determine for itself whether House members may resign.
Towards the end of the paper Chafetz argues that Republican principles would support internal action by the House that would terminate resignation as of right for House members. By basing his argument on explicitly normative grounds, Chafetz confirms that the issues is actually one of construction (i.e., that the issue is not settled by the meaning of the Constitution itself).
This leads to another interesting theoretical inquiry--what theory of constitutional construction is implicit in Chafetz's normative discussion. Is it important that Republican values informed the framing era? Or does Chafetz think that Republican values are important because they are the true or correct values as identified by the best theory of political morality? Or perhaps Chafetz would adopt a Dworkinian stance and argue that Republican values are embedded in the theory that best fits and justifies our institutional practice as a whole? In email correspondence, Chafetz suggests that he sees this discussion as "a "policy"-type argument that the House would be wise to exercise that power under certain circumstances." This move to policy is, of course, the bread and butter of contemporary legal scholarship, but (thinking out loud) I wonder whether constitutional construction is really just a matter of policy. It may be no accident that Chafetz's policy arguments are rooted in a theory that arguably reflects the values of the Constitution itself. Althought the "republican form of government" clause does not directly apply, it certainly suggests the Republicanism is a constitutional value.
Great paper!
