Chafetz on The Constitutional Status of Resignation from the House of Representatives

Leaving the House: The Constitutional Status of Resignation from the House of Representatives is a new article by Josh Chafetz, Cornell University - School of Law. It is forthcoming in the Duke Law Journal (2008). Here's the abstract:

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.