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Rahm Emanuel’s Peculiar Resignation

            By letter dated January 2, 2009 (although apparently released earlier in the week), Rahm Emanuel informed Illinois Governor Rod Blagojevich that “I am writing to resign my position as United States Representative from the Fifth Congressional District of Illinois, effective January 2, 2009.” 

            What is odd about this letter is that January 2 was the last full day of Emanuel’s term as Representative in the 110th Congress, which expired at noon on January 3.  As I pointed out previously, there was little reason for Emanuel to resign his seat in the 110th Congress since that seat could not be filled by a special election in the remaining time.  It is hard to understand why Emanuel would resign his seat one day before his term expired. 

            Even more surprising, the letter does not explicitly state that Emanuel is resigning his seat in the 111th Congress.  Resigning his position as Representative on January 2 would not, at least read literally, have any effect on Emanuel’s status in the 111th Congress.  The letter speaks of resigning only one “position” and, on January 2, his “position” was that of United States Representative in the 110th Congress.  With regard to the 111th Congress, Emanuel was not a “Representative” or a “Member,” but a “Member-elect.”  

Moreover, had Emanuel intended to refer to his seat in the 111th Congress, one would expect him to have used a less ambiguous term than “resignation.”  Technically, it is arguable that a Member-elect does not “resign” at all, but simply declines to take the oath or accept the seat.  See J. Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L. J. 177, 188, 216-18 (2008) (discussing the distinction).  For example, when Newt Gingrich decided in November 1998 that he would leave Congress at the end of the 105th Congress, he informed the Governor of Georgia that he had “withdrawn” and would “not take the seat of congressman for the Sixth District of Georgia for the 106th Congress.” 

Emanuel clearly expects that everyone will understand his letter to be statement of intent not to take his seat in the 111th Congress.  Perhaps then his letter merely reflects sloppy drafting.  Or could he have deliberately set out to create an ambiguity with regard to his status in the 111th Congress?

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