Josh Marshall rightly observes this morning that Politico's feature story on the New Jersey tea party's legal efforts to recall Sen. Robert Menendez (D-NJ) gives pretty short shrift to a key flaw in the cunning plan -- “the fact that recalling a federal senator is clearly unconstitutional.” Indeed, the article is a masterpiece of non-committal, “not everyone agrees”-type hedgery, and the closest they come to acknowledging this substantial hurdle is observing that “it's not entirely clear whether their approach will meet constitutional muster.”

The Politico also missed a fine opportunity to explore the tea party's schizophrenic attitude toward the Constitution. They will talk your ear off about how the country has supposedly deviated from the principles enumerated in the founding document and how the only way to save ourselves from socialism or fascism or Democrats or whatever is to strictly adhere to its precepts. But it's also clear, at least in the case of the New Jersey recall efforts, that they're willing to ignore the parts of it they find inconvenient to their short-term political goals.

Politico never explains why, exactly, the tea partiers want to pull the plug on Menendez's senate tenure, so we'll turn to the New Jersey recall effort's website, NJRecall.com, which features a rambling and discursive "Letter to All American Citizens" that presents their cause as an effort to protect the Constitution and follow the will of the Founding Fathers:

Robert Menendez does not have an exclusive [sic] on turning a deaf ear to his constituents. Many in Congress seem to forget that they have been elected to represent the American people and to uphold the Constitution. Either they are ignorant of the parameters of a Constitutional Republic or they have chosen not to uphold its principles. In either case, they are not fit to hold public office in this particular country.

[...]

In NJ, it's not politics as usual. It's politics the way our founders intended they should be. We have wakened from our apathetic nap that has allowed our government to encroach upon our rights that our founders pledged their lives, their treasures, and their sacred honor to secure.

Absent from the letter, though, is what the Constitution actually says (the group instead cites the New Jersey constitution, which does allow for the recall of members of the state's federal delegation, but is obviously subordinate to the U.S. Constitution). Politico doesn't mention the Constitution's language on the issue either, so let's reproduce it below, from Article I, Section 5:

Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

The language seems pretty unequivocal -- the Senate has final authority over who can and can not serve as a senator. The Congressional Research Service reached that same conclusion in a 2008 report, pointing out that there is no constitutional provision for recalling a federal officer, and that the “weight of judicial and administrative decisions, rulings, and opinions” make clear that the removal of elected federal officials prior to the expiration of their term of service is a power granted expressly to the federal government:

As to removal by recall, the United States Constitution does not provide for nor authorize the recall of United States officers such as Senators, Representatives, or the President or Vice President, and thus no Member of Congress has ever been recalled in the history of the United States. The recall of Members was considered during the time of the drafting of the federal Constitution in 1787, but no such provisions were included in the final version sent to the states for ratification, and the specific drafting and ratifying debates indicate an express understanding of the Framers and ratifiers that no right or power to recall a Senator or Representative from the United States Congress exists under the Constitution.

The CRS report also noted that the recall issue, which had been a feature of the Articles of Confederation, was debated and rejected at the Constitutional Convention of 1787:

The Constitutional Convention of 1787 considered but eventually rejected resolutions calling for this same type of recall [recall of Senators by the state legislatures as provided in the Articles of Confederation]. ... In the end, the idea of placing a recall provision in the Constitution died for lack of support -- at least from those participating in the ratifying conventions. The framers and the ratifiers were consciously seeking to remedy what they viewed as the defects of the Articles of Confederation and some of their state constitutions, and for many of them this meant retreating from an excess of democracy.

So the tea partiers are arguing that their push for recalling Menendez is an effort to protect the Constitution and honor the will of the Founding Fathers. All the evidence, however, indicates that their efforts are deeply unconstitutional and were expressly rejected by the founders at the time of ratification.

Seems like something Politico should have explored a bit. Or at least pointed out.