A March, 2010 photo provided by the office of Rep. Gabrielle Giffords (D-Ariz.)
A March, 2010 photo provided by the office of Rep. Gabrielle Giffords (D-Ariz.) ASSOCIATED PRESS
A thought that's no doubt crossed many minds since the mass shooting in Tucson which left Rep. Gabrielle Giffords grievously wounded is: what does the law require when a member of Congress is incapacitated and can't perform the job?
That doesn't mean anyone wants anything other than her full recovery. So far, she has been nothing short of a miracle.
Still, the situation does make you wonder what mechanism exists in cases where a lawmaker can't return?
Apparently, it isn't a state law, like one that exists in Arizona. The state does have a statute requiring a lawmaker to step down if he or she can't perform the duties of the office for consecutive three months.
But it's the U.S. Constitution, not state law, that controls in the case of a federal lawmaker, according to experts, as the Washington Post and Tucson Sentinel reported. There had been some question as to whether the Arizona law would be an issue for Giffords and her family.
From the Post:
Courts have consistently held that states cannot add qualifications to those in the Constitution and have rejected efforts to remove members of Congress, even through term limits and recalls.
"Legally, it's not a close call," said Brian Svoboda, a lawyer for the Democratic Party. "You have a history of interpreting these constitutional decisions and the courts have consistently struck down state laws that have tried to impose additional qualifications beyond those that are set forth in the Constitution."
The Sentinel reminds us that Arizona has had a lawmaker before who was out for several months because of injuries from a fall related to Parkinsons Disease.
In 1991, then-Rep. Mo Udall was hospitalized for nearly four months, until he resigned on May 4.
Udall, who had Parkinson's disease, fell down the stairs of his McLean, Va., home on Jan. 6. He suffered several broken ribs, a fractured shoulder blade and a concussion.
Udall announced his retirement on April 19 of that year.
Meanwhile, Slate explained that the pattern has been that members of Congress who have been felled by injury or illness keep their seats until they or their families decide it's time to go:
There are no rules in the House or the Senate that say a member of Congress must ever resign due to health reasons.