Chris Christie knows what he's doing

Calling for a special election in October, when there's already going to be a general election in November, is an expensive hassle that will annoy voters and pundits alike. That's probably the best that Christie could have hoped for. The worst-case scenario for him would be going up against the Cory Booker GOTV machine, simply because the biggest obstacle to his reelection is the likelihood that Democrats will simply mob the polls in this off-year election.

When you look at it that way, it's worth $24 million to Christie to call for an October vote. It's terrible financial stewardship for crass political purposes, but they're really important crass political purposes.

Harvard Law, folks! Let's give them a round of applause.

I'm beginning to wonder if the GOP might not be making an attempt to undercut the President's legal background by having some of its own HLS grads act like complete idiots.

First example: Congressman Cotton of Arkansas.

Sure, I'm obligated to point out how obliviously unconstitutional the Cotton Amendment was. But stunning stupidity aside, there's something really depressing in his follow-up:

“I sympathize with their plight if they are harmless, innocent civilians in Iran. I doubt that that is often the case.”

He seems to be suggesting that it's more likely that people from a country governed by a domestically oppressive, murderous regime are coming to America in order to attack us than that they're coming to seek shelter and aid from us.

Setting aside the rest of the offensively paranoid racism, that's a really sad--and very unpatriotic--sentiment to hear from a Congressman. I tend to think people from countries that murder demonstrators in the streets who come to the U.S. are probably more interested in taking shelter in our freedoms than attacking them. When the world looks up at the Shining City on a Hill, does Rep. Cotton really believe they're thinking "hey, a shining city on a hill! Let's attack it!"?

Next we have someone who I don't think will ever run dry as a fount of entertainment (unless he's actually elected and put in a position of power, in which case I don't think anyone will find it funny at all): the GOP nominee for Lieutenant Governor of Virginia, E.W. Jackson, who doesn't think federal disaster relief is constitutional, says that the idea of GLBT Pride Month "makes me feel ikky all over," and, of course, this:

In an April 28, 2011 statement while he was a Senate candidate, conservative minister and lawyer E.W. Jackson held up the three-fifths clause as an “anti-slavery” measure. The context of his statement was to attack President Obama after a pastor at a church service he attended referred to the three-fifths clause as a historical marker of racism.

“Rev. [Charles Wallace] Smith must not have understood the 3/5ths clause was an anti-slavery amendment. Its purpose was to limit the voting power of slave holding states,” Jackson, an African-American, said in his statement.

The Three-Fifths Compromise was the way that the South was able to dominate American politics until the Civil War. It's why more than half of Presidents before Lincoln were Southern slave-owners. It's why the list of Speakers of the House before the Civil War is dominated by Southerners and slave-owners. To claim that it was an "amendment" is bad enough for someone from HLS (the sort of mistake we expect from the laity), but to claim it was "anti-slavery" is stupid beyond all mortal ken.

Article 3:16

I can't wait until the North Carolina legislature tells us the proper interpretation of the 13th Amendment, too!

A bill filed by Republican lawmakers would allow North Carolina to declare an official religion, in violation of the Establishment Clause of the U.S. Bill of Rights, and seeks to nullify any federal ruling against Christian prayer by public bodies statewide.

...

House Bill 494, a resolution filed by Republican Rowan County Reps. Harry Warren and Carl Ford, would refuse to acknowledge the force of any judicial ruling on prayer in North Carolina – or indeed on any Constitutional topic:

"The Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people," the bill states. "Each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion."

...

The bill goes on to say:

SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.

SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools or any political subdivisions of the State from making laws respecting an establishment of religion.

The North Carolina General Assembly may assert that if it wishes, but then the North Carolina General Assembly will affirm it's run by witless, illiterate buffoons who should by all rights be drafting legislation with Crayolas on construction paper.

Someone needs to remind these fine Southern scholars that, when it comes to the federal-state relationship, the courthouse they should be remembering is Appomattox.

Too Big To Fail

Stories like this drive me nuts:

There is virtually no chance any significant piece of legislation will pass Congress that would meaningfully reduce the size of the nation’s biggest banks or restrict their activities.

It’s true the recent rise in break-up-the-banks fever could embolden regulators to get a little tougher in final Dodd-Frank rules, expected later this year. And a strange bedfellows, left-right coalition is now pressing for more dramatic action.

Still, there’s nothing on the horizon likely to satisfy those who say the biggest banks — led by JPMorganChase, Citigroup, Wells Fargo and Bank of America — continue to pose a systemic threat to the U.S. economy.

First was "too big to fail." Then was "too big to prosecute." At some point, can we please focus on the first two words in those phrases?

We screwed up letting this happen. We need to fix it.

The Things That Keep State Rep. John Kavanagh Awake at Night

"Weird people," indeed:

A new bill introduced this week by Republican state representative John Kavanagh would make it a Class 1 misdemeanor to use a public restroom that does not correspond to the gender on one’s birth certificate. If a person is reported to be using the bathroom without the proper paperwork and matching genitals, it would be defined as “disorderly conduct” and the person could be fined $2,500 and spend six months in jail.

The new bill comes on the heels of anti-discriminatory legislation passed in Phoenix last month which extended basic protections to transgender people in housing, the workplace, and in places of public accommodation.

It’s the last bit regarding “public accommodation” that inspired Kavanagh to introduce his own bill. He told 12 News Phoenix: “The city of Phoenix has crafted a bill that allows people to define their sex by what they think in their head. If you’re a male, you don’t go into a female shower or locker room, or vice versa.”

He added that the Phoenix ordinance could also protect “weird” people who use the wrong bathroom on purpose: “It also raises the specter of people who want to go into those opposite sex facilities not because they’re transgender, but because they are weird.”

When I was in middle school, one of my classmates was a transsexual student who was biologically female but identified as male. Would anyone care to guess what happened the day he tried to use the "correct" girls' restroom when a substitute teacher who didn't realize the situation was on duty?

This is about shaming the trans community. Nothing more.

Bachmannia!

It still amazes me that Michele Bachmann was, at one point, a front-runner for the Republican nomination for President. I have a very hard time imagining how people look at her and think "There's someone I want representing me!"

Here she is running away from Dana Bash while trying to dodge questions about false information in a speech she gave.

Henceforth, this shall be known as the "Bana Dash"

And here is the Washington Post fact-checker pointing out another massive lie from the same speech:

Indeed, the 2013 budget documents submitted to Congress by the Agriculture Department, which manages SNAP, shows that less than 6 percent of the program is spent on administrative costs. Only 166 people manage the $82 billion food-stamp program — many outside Washington — and the budget document says that staff salaries amount to one-third of 1 percent of USDA’s budget for food and nutrition programs.

Considering such statistics are easily available to a member of Congress, let alone his or her staff, it’s a wonder she never bothered to check. She just assumed “government bureaucrats” were consuming funds reserved for poor people.

A Bachmann spokesman did not respond to a request for comment.

Bachmann made two key errors here. First, she misinterpreted Tanner’s point. Then, she blithely assumed the ratio was applicable to the Food Stamp program when budget data show she’s off by more than a factor of 10 (or a factor of 200, if you just count salaries.)

I really can't figure out how she stays in office. I can only assume the people that keep voting for her like to look for interesting shapes in their bowel movements and say their favorite food is "puh-sketti," and somehow a lot of them ended up clustered in one general area.

This has been another edition of "I Guess Good And Stuff"

Back in February, when Indiana Secretary of State Charlie White became a convicted felon, I wrote

So the next question is: who becomes SoS?

Mitch Daniels seems to be proceeding as if he's going to be able to make a permanent appointment. But there's still a question as to whether the job rightfully belongs to the highest vote-getter in the last election who was actually eligible for the job. If it does, then Democrat Vop Osili would be sworn in.

I think that Daniels' choice will probably be sworn in permanently. I don't really think the courts will want to give the job to someone whom over 60% of the state voted against when it can allow the governor from White's own party to make an appointment to fill the vacancy. Even though Osili was the highest vote-getter who was actually eligible for the office, and has a very good claim to the position, I think the courts will decide to let this one play out politically rather than actively award the office to someone. But I've been surprised before.

The Indiana Recount Commission held he was eligible, and the state Democratic Party chair, who filed the challenge, appealed to the courts. Judge Rosenberg ruled against White. Judge Rosenberg's verdict is being appealed: whether his ruling will stand on appeal is in doubt, and I (not to sound too much like the legal realist that I am) would expect the courts to find a way to allow the governor's appointee to hold office, since they don't want to be seen as giving the job to someone "rejected" by the voters, especially not so long after the actual election.

That's really more my take on the politics of the situation, but I can think of a way for the appellate courts to handle the issue that would let Daniels make a pick (two ways, actually: one based on statutory interpretation, and the other based on laches, a concept generally illustrated here.).

I think the question of whether White was actually ineligible to be on the ballot was somewhat close. I take a very liberal view of residency requirements, and when he initially entered the race I think he might have been okay remaining registered at his ex-wife's home, since he actually returned there for a time in 2010 before his re-marriage (Judge Rosenberg ruled otherwise, but without further knowledge of Indiana case law I could see this being reversed on appeal, or at least remanded back to him with instructions to more carefully consider whether he could not have legally resided at his ex's house as a matter of law, even though that's where his belongings were, where his son lived, and where he seems to have stayed when in town). If an appeals court holds he was validly registered at his ex's in February 2010, he arguably met the statutory requirement for candidacy ("A person is not qualified to run for...a state office...unless the person is registered to vote in the election district the person seeks to represent not later than the deadline for filing the declaration or petition of candidacy or certificate of nomination."). It's not a great argument, but I can see a court grab hold of it if they need a reason to avoid appointing Osili. Based on the findings of fact in the lawsuit to have him removed*, he probably should have re-registered sometime between May 28, 2010--when Judge Rosenberg found he stopped staying at his ex's and removed all his belongings from there--and the nomination deadline in July 2010, but he might have still met the statutory requirement

(*Note: this is just for the matter of him being listed on the ballot, not the question of whether he committed fraud by voting from his ex-wife's address in the May 2010 primary, which he most assuredly did. The jury in the criminal case found that he should have re-registered much earlier than the facts in the lawsuit seem to indicate--I guess that's the difference between actually mounting a defense and sitting silently while a case against you is made.)

Well, the opinion isn't up yet, but it looks like they went with the laches argument, which makes sense in this context.


UPDATE: The opinion is here.

Women's History Museum drama

Two things:

First, I don't care if this costs taxpayers money or not: this is a damn fine investment and way overdue.

Second, no matter if Jim DeMint and Tom Coburn get their panties in a twist, a women's history museum in this country that doesn't prominently include Gloria Steinem and Bella Abzug isn't worth spit.

Well, that's another Hill job that I won't be getting.

House leadership announces the end of the Page program. Because that $5,000,000 a year can probably be better spent than encouraging the very few children who still believe in the institution of Congress.

Marijuana Legalization Initiative Kept Off Ohio Ballot

The same thing happened to Ralph Nader in 2008: a shockingly high number of petitions were deemed invalid for a variety of reasons. I wonder if there's a higher than average signature rejection rate in Ohio:

COLUMBUS — An effort to legalize medical marijuana in Ohio was stopped in its tracks Wednesday when supporters failed to get enough valid signatures on petitions, according to Ohio Attorney General Mike DeWine’s office.

The proposal needed 1,000 signatures, but just 534 of the 2,134 turned in by supporters were deemed to be valid, according to a release to the media from DeWine’s office. That's about a 75% rejection rate for signatures. I've seen quite a few blog posts and tweets laughing about this as though the petitioners were just stoned slacktivists who didn't step up to the challenge. But getting over 200% of required signatures seems pretty on-the-ball to me. Something about this feels off.

He asks unanimous consent to revise and extend.

Given that over 1,400 millionaires paid no income taxes last year, I wonder if Rick Warren wants to amend his earlier Tweet:

New tax data from the Internal Revenue service shows that in 2009, incomes fell, unemployment claims rose, and the U.S. economy shed nearly two million taxpayers.

And of the 235,413 taxpayers who earned $1 million or more in 2009, 1,470 of them paid no taxes.

Remember, Pastor Rick "The Poor Will Always Be Worth Less" Warren tweeted last month that "HALF of America pays NO taxes. Zero. So they’re happy for tax rates to be raised on the other half that DOES pay taxes.” As countless commenters immediately noted, everyone pays at least sales taxes, and plenty of wealthy Americans are calling for a return to a prudent tax policy. But now we have yet another way to show that Rick Warren knows not of what he tweets.

On backstabbers

Following Del. Sam "Zell" Arora's inexplicable will he/won't he over voting for gay marriage in Maryland (the bill didn't pass the House this year, and is on hold until next January), I had a few chores to do.

First, I had to rip the "Sam Arora for Delegate" sticker off my bumper.

Second, I had to post a public apology on AmericaBlog.com for having donated to his campaign.

Third, I had to check the list of donors to his campaign against the dozens of names I'd given him from my fundraising database, to make sure that my donors weren't going to hold it against me forever that I'd given their info to a cheap, cowardly liar.


Finally, I had to start looking for a candidate to run against him in three years, when he's up for re-election (sadly, we don't have a recall provision here in MD).

Treachery doesn't just hurt feelings: it takes up a lot of time, too.

Oh, for the love of Rahm!

Another residency issue crops up, this time with Senator Richard Lugar of Indiana, who stays in a hotel when in-state.

Guys, looking up Article II, §4 of the Indiana Constitution wasn't exactly hard:

No person shall be deemed to have lost his residence in the State, by reason of his absence, either on business of this State or of the United States.

IC-3-8-1-1 sets the qualification for candidacy at no more than being a registered voter in the election district (in the case of the Senate, that would amount to merely being registered in Indiana). IC-3-5-5-18 expressly allows for residents of "nontraditional residences" to register.


So state law says that he keeps his registration when he's in DC, he's qualified to run by virtue of being a registered voter, and he may remain registered even if his residence is deemed to be his hotel instead of his family farm (which, incidentally, another provision of state law addresses). I'm not saying it would be impossible to make a case to kick Lugar off the ballot, but I am saying that it would be a better use of his opponents' time to just campaign against him and let the voters do their thing.

"Hey, at least only CERTAIN people can legally murder abortion providers!"

Sometimes I make fun of state legislators for stupid stuff, like this and this. But this is simply evil:

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
    Section 1. That § 22-16-34 be amended to read as follows:
    22-16-34. Homicide is justifiable if committed by any person while resisting any attempt to murder such person, or to harm the unborn child of such person in a manner and to a degree likely to result in the death of the unborn child, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is.
    Section 2. That § 22-16-35 be amended to read as follows:
    22-16-35. Homicide is justifiable if committed by any person in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, or the unborn child of any such enumerated person, if there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished.

This amendment is about one thing: allowing the family members of pregnant women to kill abortion providers.

Look at the law as it stands now, without the underlined sections. That language still allows people to protect others from assault and battery, as well as any other felony or personal injury. By definition, an unwanted medical procedure constitutes battery, so if someone attempts to force a woman to unwillingly abort a pregnancy, deadly force can already be used. What this amendment does is change the rules so that the risk of "some great personal injury" to the fetus, independent of the woman's consent, can justify using deadly force.

So assume a husband finds out that his wife is seeking an abortion. He watches her walk into a clinic the only clinic in the state, then sees the only doctor willing to perform abortions get out of his car in the parking lot. Since it's South Dakota, the husband has his loaded rifle in the car with him, which is perfectly legal. Guess what he can legally do under the proposed amendment?

This is a terrible law, and the state representative proposing it should have to answer some tough questions about how he can possibly think this is a good idea (assuming, of course, he isn't a cavalier endorser of murdering abortion providers, which he might well be). Cue the surprise, then:

Jensen did not return calls to his home or his office requesting comment on the bill...

UPDATE: Jensen has commented at last, saying that the restriction to "lawful defense" means that an attempt to use murder to prevent an abortion would be excluded from the law's protection. I'm not sure he's correct, though, if he is, what exactly does he intend his amendment to accomplish? A threat to an unborn child that can be stopped via deadly force is almost certainly going to also pose a threat to the pregnant woman carrying it, and, as I noted above, such threats are already covered by the justifiable homicide statute. So what does he think he's changing here? He offered this example to Greg Sargent:

"Say an ex-boyfriend who happens to be father of a baby doesn't want to pay child support for the next 18 years, and he beats on his ex-girfriend's abdomen in trying to abort her baby. If she did kill him, it would be justified. She is resisting an effort to murder her unborn child."

Is Jensen arguing that "beat[ing] on his ex-girlfriend's abdomen in trying to abort her baby" doesn't fall under the category of "felony" or "great personal injury"? His story doesn't add up.

"I'm not a history major, though." He's also not an Originalist.

State Rep. Hal Wick (R-SD) thought it would be funny to introduce a law mandating that people purchase firearms as a way of protesting the federal health insurance mandate.

What he didn't realize is that we used to have just such a requirement, under the Militia Act of 1792.

[E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

If, upon being presented with this information, Rep. Wick had simply admitted that he'd made a mistake in thinking such a law would be unconstitutional, the story would be over. But that, of course, didn't happen. Instead, he offered an explanation for why it would have been constitutional to mandate gun ownership then but not now:

In the course of the interview, I asked whether this would change his opinion on individual mandates. "No," he said. "I really don't feel like a gun mandate would be constitutional under these circumstances."

What does he mean by the circumstances?

"Well, it was shortly after the Revolutionary War, and it was before the War of 1812," he said, "which may have been something that was on the radar screen -- that they knew there could be another challenge coming from overseas. I'm not a history major, though."

Let's set aside for a moment the obviously ridiculous argument that a war 20 years in the future could justify something that's otherwise unconstitutional whereas a present crisis in health care would not. Notice that he's arguing that something that once was constitutional no longer would be, despite the Constitution's language on the issue remaining unchanged.  That's the antithesis of originalism. Originalists come in various stripes, but the idea that the Constitution's meaning is fixed until properly amended is common to all of them.

I'm not really an originalist, though I practice originalism on occasion (it's a useful tool for determining statutory or constitutional meaning, though it isn't the only one, and it isn't the only valid one). But, in today's GOP, anti-originalism is akin to apostasy. The legal challenge to the health care reform bill's mandate is based on an originalist view of the Commerce Clause. Originalism was the basis for the opinion (and Justice Stevens's dissent!) in District of Columbia v. Heller, one of the most important Second Amendment cases ever decided. For someone who's endorsing both gun rights and the challenge to the insurance mandate to also reject originalism is stunning.

Obviously, in addition to not being a history major, Rep. Wick is also not a constitutional law scholar. Perhaps he'll keep both of those facts in mind the next time he wants to pull a stunt like this.

I hate to say "I told you so," but...wait, no, I love it.

Me on Tuesday:

My reading of the statute (and I'm willing to bet the reading that the Ill.Sup.Ct. will adopt in the next day or two) is that being a legal resident of Chicago for the year prior to the election--which Rahm was--is all that's really required.

The Illinois Supreme Court today:

Yeah, what JR said.

Mountains of law school debt: totally worth it!

"No, Michelle! Over here!"

Did Rep. Bachmann's cameraman forget his squeaky toy or something?

Looks like the Class of 2010 may have its first dropout

According to numerous sources, Republicans are making plans to cope with an ongoing scandal involving newly elected Representative David Rivera.

In my experience, the first step in "draining the swamp" is to stop dumping in water. Just sayin'.

My prediction: Reversed and Rahmanded

The Illinois Supreme Court (as I expected) issued an emergency stay preventing Chicago from printing mayoral ballots without Rahm Emanuel's name on them, as a divided appellate panel ordered yesterday.

The law at issue reads:

Sec. 3.1‑10‑5. Qualifications; elective office. (a) A person is not eligible for an elective municipal office unless that person is a qualified elector of the municipality and has resided in the municipality at least one year next preceding the election or appointment;

The appellate majority held that the second prong was not met, and that Rahm does not qualify to run for office since, in their interpretation, he hasn't "resided" in Chicago even though he maintained his legal residence there and remains qualified to vote there (which, likewise, is based on a concept of residency).


I don't have anywhere near the experience of people like Rick Hasen when it comes to this little corner of the law, but campaign and elections law is one of my areas of focus (I'm currently the president--ironically appointed by executive fiat--of the Georgetown Election Law Society). And, for whatever it's worth I'm fairly sure that Rahm gets to run. I think the appellate majority misinterpreted the statute at issue. My reading of the statute (and I'm willing to bet the reading that the Ill.Sup.Ct. will adopt in the next day or two) is that being a legal resident of Chicago for the year prior to the election--which Rahm was--is all that's really required. 
If you want a better discussion than this of the case, check out Rick Hasen's article in Slate. Richard Winger has Rahm's brief here.

WaPo thinks Rep. Bill Young is Illegally Seated in Congress!

The Washington Post ran a story on Monday suggesting that Rep. Gabrielle Giffords might be stripped of her seat in Congress, due to a provision of Arizona law that deems a seat vacant in the event that the occupant fails to discharge the duties of office for three consecutive months.

So how come Bill Young can still be a Congressman, even three decades past his state constitutionally mandated retirement date?

See, Bill Young is a Congressman from Florida, and has been since the 1970s. His district's voters continue to re-elect him every two years, and he continues to serve them in Washington. In fact, he's currently the longest-serving Republican in Congress. But ever since 1992, there's been a provision in the Florida constitution setting term limits for U.S. Representatives and Senators (as well as members of the state legislature, the Lieutenant Governor, and all cabinet posts). The maximum any elected official can serve in a single office under that law is eight years.

So why is Rep. Young still allowed to serve?

The answer is actually pretty simple. The state term limit law is invalid as applied to federal officers.

States can enact all sorts of laws on all manner of issues, from voting rights to abortion. Sometimes, however, those laws run afoul of the Constitution. If a state passes a ban on all abortions, the courts will rule it unenforceable. If a state says you have to be 30 to vote, they can write such a law in stone and it won't matter: it will not be enforced as written. If a state authorized slavery, or outlawed all firearms, or wrote that all crimes would be punishable by life in prison, those laws would be invalidated as well. But that doesn't mean the laws would disappear from the books!

No, dead-letter law exists in any number of places. And for good reason: a future Supreme Court majority might overturn an old precedent, making the previously unenforceable law kosher once more. But these are very, very rare moments, because while the Court may from time to time reinterpret the Constitution's text, I doubt they would be willing to reinterpret the basic principles of federalism. The Constitution is the supreme law of the land: it tells us so itself!

The easiest way to dispose of this article's ridiculous premise is to note that there isn't really a way for Representatives to not "discharge the duties of office," since there are really only two affirmative duties the Constitution places on Members of Congress. "The House of Representatives shall chuse their Speaker and other Officers," and "The Senators and Representatives before mentioned...shall be bound by Oath or Affirmation, to support this Constitution." Beyond that, it really is just a matter of (putting it bluntly) being able to fog a mirror.  Sure, Congress has power to do certain things, and is enjoined from doing others, but as for affirmative obligations of office, those two are it, and Giffords already did both during the 112th Congress (famously casting a vote for Rep. John Lewis to be Speaker).

But that easy workaround aside, the whole issue is one of a state trying to impose additional conditions for congressional service beyond those set by the Constitution. If the Courts won't let Congress impose such conditions, there's no way on earth they'll let the states do it. Imagine if a state allowed its governor to unilaterally recognize a vacancy in Congress whenever he felt like it. A hapless Member could take off from Dulles a Congressman and land back home a pensioner. It's simply unworkable, and it's constitutionally unsound.

In fact, this is so obvious a point that I have to wonder why the Washington Post would indulge in such speculation. As the article's authors themselves noted, this is a very obscure provision in Arizona law, and it doesn't take a Supreme Court clerk to tell that there's no cause for concern, legally or politically, about Rep. Giffords being removed from office (seriously, can you imagine the outrage if Gov. Brewer attempted to call a special election to replace Gabby while the Congresswoman is recovering?). I have to wonder who pointed these reporters to this provision of the law, and what their agenda was in so doing.

Regardless, the fact remains: Giffords's seat is hers until she resigns, is expelled from Congress, or loses an election. No need to pretend otherwise, WaPo.