Eric Kleefeld April 7, 2010, 11:41 AM

Can the Tea Partiers in New Jersey actually recall Democratic Sen. Bob Menendez from office, over his support for the health care bill? Members of Congress cannot be recalled, because the United States Constitution establishes the qualifications and term in office for representatives and senators.

But that’s not stopping Recall NJ from trying to unseat Sen. Bob Menendez, a Democrat who supported health reform. So why are they taking on this uphill battle, which is currently being litigated through New Jersey’s court system? What if it all comes to nothing and they lose, we asked?

“The message that is being sent, win or lose, is that public servants, you are on notice, we want accountability at the highest levels of government and the lowest levels of government,” said Recall NJ spokesman James Bridge, a high school teacher and Tea Party activist. “And you can never forget we are the ones who send you to Washington, or Trenton, or your county office. And you can never forget us. We will not let you forget us.”

The tea partiers will have an uphill battle given the fact that it’s not constitutional to recall a sitting member of Congress. The constitution does not have a provision providing for the recall of members of Congress, and no member has ever been recalled because individual states don’t have the authority to change the terms of office for a federal official.

Professor Larry Sabato at the University of Virginia’s Center for Politics affirmed to us that this would ultimately not succeed. Indeed, Sabato noted a past case in the 1970s, when an effort to recall then-Sen. William Scott (R-VA) quickly ended because the effort was basically unconstitutional.

“I’m gonna be surprised if it’s constitutional. I’d be very very surprised if it’s constitutional,” said Sabato, in an interview with TPMDC. “Yes, the constitution is silent on it, but it says the Senate is the judge of its members.”

“One good aspect to this is we might get a definitive ruling that would apply to all states,” Sabato added.

A state appeals court three weeks ago ruled that the signature-gathering effort could go forward — refusing to find the state’s recall laws unconstitutional as they apply to members of Congress — but at the same time placed a stay on its own ruling so that Menendez could appeal and resolve the issue further up the judicial ladder. Menendez formally filed his appeal Monday.

It’s interesting to note, from the court’s opinion, that this is an untested legal ground in the sense that no attempts to recall federal legislators ever reached the point of requiring a court decision about the constitutionality. That is, all the previous attempts in other states failed to even remotely reach the required signature thresholds, so a court never even had to address the issue.

And even if this effort by Recall NJ were to succeed in court, they would still need to gather the signatures of 25 percent of all registered voters in the state — 1.3 million signatures, nearly as many people as the 1.6 million voted for John McCain in New Jersey for the high-turnout 2008 election. But Bridge says they can get those 1.3 million signatures: “I believe firmly that we will get that. And I think this [Menendez’s appeal] shows that he agrees with us, and he will put it off at all costs.”

It’s also very important to note that the court’s opinion acknowledged the arguments against a recall’s constitutionality — such as the fact that recall provisions were rejected during the debates at the Constitutional Convention in 1787 — which is itself an omen for how further litigation could be decided. But in the end, this court instead kicked the matter upstairs: “To summarize, we neither declare the recall provision in our State Constitution as applied to a United States Senator definitively valid or invalid.”

This post was edited from the original.

Recall, Robert Menendez, Tea Party