Sen. Robert Menendez, D-N.J.

It’s the upstart tea party activism versus the establishment in a court case in New Jersey that could bode ill for members of Congress who raise the ire of their constituents by voting against their desires, and a decision is expected soon.

The case being watched by activists coast to coast is a proposal to recall Sen. Robert Menendez, a Democrat who voted for the Democrats’ health law and various federal bailout spending plans to the frustration of New Jersey voters.

A tea party-backed organization proposed a recall vote on Menendez, whose term expires in 2012. But state officials summarily refused permission for the vote to take place.

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This week, the state Supreme Court heard arguments in the issue, on which the U.S. Constitution is silent and the state constitution specifies procedures for recalls of federal officials.

Menendez, trying to counter the recall effort, dispatched aide Afshin Mohamadi to declare, “Mainstream New Jerseyans believe deeply in the U.S. Constitution that for more than 200 years has made ours the greatest form of government in world history. This attack on the Constitution undermines our uniquely American system of democracy and will be contested.”

However, those who want Menendez removed point out the Constitution does not address the recall of senators, who originally were named by state legislatures, not a popular vote. Also, the Tenth Amendment reserves to the states all responsibilities not specifically given to the federal government in the Constitution.

In 1993 voters in New Jersey decided by a split of 3-1 to add to their own state constitution the provision, “The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this state or representing this state in the United States Congress.”

The high court, which is expected to rule soon, accepted a friend-of-the-court brief from a coalition arguing on behalf of the right of the citizens of New Jersey to not only adopt the provision but follow through with the action it allows.

The brief was filed by the Conservative Legal Defense and Education Fund, Institute on the Constitution, U.S. Justice Foundation, Gun Owners Foundation, Gun Owners of America Inc., Vision to America, the Lincoln Institute for Research and Education, Public Advocate of the United States, Inc., U.S. Border Control, U.S. Border Control Foundation, American Coalition for Competitive Trade, and the Constitution Party Committee.

“The power to recall senators is reserved to the people by the Tenth and Seventeenth Amendments of the U.S. Constitution,” the brief argues.

It notes that “qualifications” for the post are set by the federal Constitution, but the “mode” of electing members of the Senate “has never been vested in any ‘federal authority.'”

“Menendez would have this court rule that the powers conferred upon the House and Senate to ‘judge … elections, returns and qualifications of its own members’ would limit the power of the people to elect ‘whom they please to govern them’ by denying to the people any power to recall an elected member of Congress,” the brief argues.

The argument cites a letter from George Washington, who wrote that representatives of the people, when they refuse to work in the people’s “best interests,” “can and undoubtedly will be, recalled.”

Gary Kreep of the United States Justice Foundation told WND voters in New Jersey passed a law addressing the issue, in the absence of national constitutional language.

“If the recall goes forward, it’s not like he’s out of office. People just have the right to decide,” he said.

But instead of responding to the dissatisfaction that is apparent, Menendez is “using every legal maneuver” to avoid responding to voters, he said.

“He’s saying, ‘Nah, I don’t care what the voters think, I’m above the law,'” Kreep said.

New Jersey Tea Parties United and the Sussex County Tea Party originally worked together to recall Menendez.

But the secretary of state, Nina Wells, refused to cooperate. A three-judge appellate panel then ruled earlier this year the tea partiers’ notice of intent to recall Menendez must be accepted.

The tea partiers explained to the New Jersey Herald their senator “does not represent the people the way his oath requires that he does,” as evidenced by his votes on Medicare, health care and “extravagant, excessive multimillion-dollar projects that offered little or no short-term economic benefits.”

No U.S. senator, however, has ever been subjected to a recall vote.

If the tea partiers are given to go-ahead, they would have 320 days to obtain the signatures of 25 percent of registered voters in New Jersey, roughly 1.3 million names, to place a recall on the ballot.

The effort to recall a senator is not entirely new, nor is it limited to New Jersey.

Peter Ferrara, a lawyer for the American Civil Rights Union, which is helping the tea partiers with their case, told the Washington Times nine states, including 12 Democratic senators who are not up for re-election otherwise, could all be on the ballot with a recall.

“Given what they’re doing on health care this year,” he added, “that’s just going to be a huge boost to the recall effort.”

The other states that could attempt recalls of their congressional representatives are Colorado, Michigan, Montana, North Dakota, Oregon, Washington, Wisconsin and Louisiana, where an effort is already underway to oust Democratic Sen. Mary L. Landrieu.

A Republican, Rep. Ahn Cao, also heard the stirrings of recall when some Louisiana citizens who objected to his vote against the stimulus bill sought to remove him last year. The attempt failed to generate enough signatures before the state’s 180-day time limit expired.

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