Legislative lawyers warn a bill establishing recall elections for U.S. Senators is unconstitutional

Utah Capitol 11

Legislative attorneys are warning a proposed bill to recall a U.S. Senator would probably be deemed unconstitutional by a court.

Rep. Tim Quinn, R-Heber, has HB217, which sets up a procedure for Utah voters to recall one of their two U.S. senators. A memo from legislative counsel obtained by UtahPolicy.com says it’s likely the bill would not withstand a legal challenge and would be declared unconstitutional.

“Based on applicable federal constitutional language and current interpretations of that language in state and federal case law, this legislation is likely to be declared unconstitutional by a court,” reads the memo.

All legislation in the Utah Legislature used to carry a constitutional note if legislative lawyers felt the proposal would run into a legal challenge. Lawmakers did away with constitutional notes in 2018 because they put lawmakers in an awkward position.

Now, any lawmaker can request a legal analysis of proposed legislation, but that information is not made public unless the requesting lawmaker chooses to share.

In the memo about Quinn’s bill provided to UtahPolicy.com, legislative lawyers say HB217 has three big problems that would render it unconstitutional.

First, it likely runs afoul of the Constitution’s Supremacy Clause. 

“The only power granted to the states by the federal constitution to regulate the office of United States senator is to prescribe the ‘Times, Places and Manner of holding Elections’,” reads the memo. “Based on the plain language of the federal constitution, a court would likely hold that any attempt by a state to provide another method of removal, via recall or another means, is without effect because it violates the Supremacy Clause.”

Secondly, legislative lawyers argue a court would likely rule that the drafters of the Constitution did not intend for states to recall a Senator.

“Historical records make it clear that a recall provision for Senators was considered, and rejected, by the Constitutional Convention,” says the analysis. “The records of the constitutional convention demonstrate that the idea of including a recall provision was introduced, and unanimously stricken.”

Finally, lawyers say existing law supports the likelihood that a recall for U.S. Senators would be struck down.

“Based on the foregoing analysis of the plain language of the United States Constitution, the historical record relating to the constitution and the 17th Amendment, and relevant case law, it appears that if the proposed legislation is challenged, it is likely that a court would declare it unconstitutional and unenforceable,” concludes the analysis.

Quinn had previously told UtahPolicy.com that he had “no idea” if his bill was constitutional or not.

Quinn met with Sen. Mitt Romney on Wednesday when he came to Capitol Hill to meet with GOP legislative leaders. Gov. Gary Herbert is out of town on business, and didn’t meet with Romney — who is being condemned or praised for being the only Republican senator to convict Trump of abuse of power in his impeachment trial.

Quinn said he told Romney, “man-to-man,” that he respected his decision to vote for impeachment, but believes he was wrong.

He told Romney — as he did UtahPolicy.com after HB217 became public — that he didn’t introduce the measure because Romney was questioning Trump’s actions via impeachment.

He started drafting the bill some time ago, even before Trump’s call to Ukraine was even public, and certainly before House Democrats started their impeachment process.

“I told” Romney “that my bill wasn’t about him, not at all. It is about senators service six years” and how for such a long term voters should have the right to recall/bring to heel senators who no longer are representing their constituents.

Quinn said since Romney’s vote Thursday around noon, 15 to 18 representatives have come to him asking to be co-signers on the bill.

Did Romney’s vote and the new co-signers mean his bill had a better chance of passage? “It can’t hurt.”

The bill sits in the House Rules Committee and may stay there for a bit since House Speaker Brad Wilson, R-Kaysville, told a hastily-called press conference that a few weeks probably need to pass — cool down tempers — and allow the House GOP caucus to decide exactly where it goes now on the issue.