Constitution of the United States/Art. I/Sec. 2/Clause 4 Vacancies

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Constitutional Law Treatise
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Constitutional Law Outline
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article I Legislative Branch

Section 2 House of Representatives

Clause 4 Vacancies

Clause Text
When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

House Vacancies Clause[edit | edit source]

Contemplating that vacancies would arise in the House of Representatives from time to time,[1] the Framers specified in Section 2, Clause 4, of Article I that the "Executive Authority" of an affected state fill such vacancies through elections.[2] The House Vacancy Clause, however, gives states discretion over the particulars of such elections, allowing them to tailor their procedures, including the timing of elections, to their circumstances.[3] In his Commentaries on the Constitution of the United States, Justice Joseph Story spoke approvingly of the flexibility the House Vacancy Clause provides states in managing their elections to fill vacancies. He commented: "The provision . . . has the strong recommendation of public convenience, and facile adaptation to the particular local circumstances of each state. Any general regulation would have worked with some inequality."[4] Perhaps because of this, adoption of the House Vacancy Clause at the Constitutional Convention appears to have been unexceptional.[5]

More controversial, however, has been whether the Framers intended for Member resignations to trigger the House Vacancy Clause.[6] While the Framers considered versions of the House Vacancy Clause that referred expressly to resignations,[7] the final language of the House Vacancy Clause did not address resignations or how vacancies might arise.[8] In 1791, the House of Representatives confronted the question of whether Member resignations triggered the Vacancy Clause when Rep. William Pinkney of Maryland resigned from Congress and the State of Maryland sought to replace him with John Francis Mercer.[9] While the House Committee on Elections supported Mercer taking Pinkney's seat, Rep. William Giles of Virginia objected because "a resignation [does] not constitute a vacancy" and the British House of Commons did not permit resignations.[10] Other Members reasoned, however, that prohibiting resignations would be inconvenient, especially "in cases of sickness or embarrassment"; there was no reason to distinguish the House from the Senate, for which the Constitution expressly contemplated resignations; and British House of Commons practice on resignations was not applicable to Congress.[11] Ultimately, the House found Mercer could replace Pinkney. Subsequent Member resignations and replacements do not appear to have faced serious challenge,[12] and resignations from the House for a wide range of reasons are routine.[13]

The Constitution treats vacancies in the House and the Senate differently. While the Seventeenth Amendment's Senate Vacancy Clause mirrors the House Vacancy Clause by requiring an affected state's Executive Authority to issue a writ of election to fill a vacancy,[14] the Seventeenth Amendment also empowers states to permit the Executive Authority to fill Senate vacancies temporarily pending an election. In contrast, the House Vacancy Clause does not contemplate state Executive Authorities filling House vacancies temporarily.[15]

  1. See, e.g., 2 The Records of the Federal Convention of 1787, at 140 (Max Farrand ed., 1911).
  2. Art. I, Sec. 2, Clause 4 Vacancies. A "writ of election" is a written order, in this case issued by the executive authority of the state, to hold a special election. Today the "executive authority" of a state is generally considered to be the state's governor. The Framers' use of the term "executive authority" reflected that early state constitutions often provided for an executive council to control or advise the state's chief executive. Charles C. Thach, Jr., The Creation of the Presidency, 1775-1789: A Study in Constitutional History 16-17 & n.7 (1923).
  3. Act of February 2, 1872, ch. 11, § 4, 17 Stat. 28, codified at [1] 2 U.S.C. § 8(a), provides that state law may govern the timing of elections to fill vacancies in the House of Representatives. After September 11, 2001, Congress provided time frames for states to hold elections if House vacancies exceed 100. [2] 2 U.S.C. § 8(b). See Thomas Neale, Cong. Rsch. Serv., IF11722, House of Representatives Vacancies: How Are They Filled? (2021), [3].
  4. Joseph Story, Commentaries on the Constitution of the United States § 683 (1833).
  5. Id. ("The propriety of adopting this clause does not seem to have furnished any matter of discussion either in, or out of the convention.").
  6. Josh Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L.J. 177 (2008).
  7. 2 The Records of the Federal Convention of 1787, at 140 (Max Farrand ed., 1911) (considering text providing that "[v]acancies by death disability or resignation shall be supplied . . . ."); id. at 227 (considering text referencing "vacancies happening by refusals to accept resignations or otherwise . . . .").
  8. Art. I, Sec. 2, Clause 4 Vacancies. By comparison, the Senate Vacancy Clause contemplated vacancies arising from resignations. Art. I, Sec. 3, Clause 2 Seats ("if Vacancies happen by Resignation, or otherwise . . . ."). One commentator has suggested that Senators were expected to resign if they refused to follow their state legislature's instructions. Chafetz, supra note here, at 214. Early in U.S. history, Senators debated the the extent to which they were expected to comply with their state legislatures' instructions. David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801 15 & n.66 (1997). Unlike the Articles of Confederation, which provided states a right to recall delegates from Congress, the Constitution did not provide states a right to recall Senators. Compare Articles of Confederation art. V, § 5 with Art. I, Section 3 Senate. In 1913, the Seventeenth Amendment superseded the Senate Vacancies Clause set forth at Article I, Section 3, Clause 2. Unlike Article I, Section 3, Clause 2, the Seventeenth Amendment does not refer to resignations and instead tracks the House Vacancy Clause language. It states: "When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies." Seventeenth Amendment Popular Election of Senators.
  9. Rep. Pinkney resigned prior to taking the oath of office.
  10. 3 Annals of the House of Representatives 205-07 (Nov. 22, 1791), reprinted in 2 The Founder's Constitution 146-47 (Philip B. Kurland & Ralph Lerner eds., 1987).
  11. Id.
  12. 3 Annals of the House of Representatives 207 (Nov. 23, 1791), reprinted in 2 The Founder's Constitution 147 (Philip B. Kurland & Ralph Lerner eds., 1987). See also Chafetz, supra note here. Chaftez notes that Congress passed a law that "allows states to set the time for filling House vacancies 'whether such vacancy is caused by a failure to elect at the time prescribed by law, or by the death, resignation, or incapacity of a person elected.'" See also Chafetz, supra note here, at 224 (citing the Apportionment Act of 1872, ch. 11, § 4, 17 Stat. 28, 29, codified at 2 U.S.C. § 8(a)).
  13. See, e.g., Neale, supra note here; Chafetz, supra note here, at 179.
  14. Seventeenth Amendment Popular Election of Senators ("When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies"). See also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 896 (1995) (Thomas, J., dissenting) (noting that art. I, § 2, cl. 4 and art. I, § 3, cl. 3 provide for state Executives to issue writs of election to fill vacancies).
  15. Seventeenth Amendment Popular Election of Senators ("Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.").