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Could Senate Refuse To Seat a Senator Appointed by Gov. Blagojevich?

Senate Majority Leader Harry Reid and Senator Richard Durbin (D-Ill.) seem to say "yes":

Please understand that should you decide to ignore the request of the Senate Democratic Caucus and make an appointment we would be forced to exercise our Constitutional authority under Article I, Section 5, to determine whether such a person should be seated.

But Supreme Court precedent suggests "no": The Court held in Powell v. McCormack (1969), that "in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution," such as age and citizenship. Now perhaps the Senators are right and the Court was wrong, and perhaps today's Court would overrule Powell. But at least at this point, Powell seems to make clear that under Article I, Section 5 the Senate may determine whether the Senator should be seated solely based on the objective qualifications that the Constitution prescribes, and not based on its judgment whether Gov. Blagojevich ought to be entitled to make the appointment.

(I note that it's conceivable that if there's an allegation that the appointment is the result of a bribe, the situation might be different, but I take it that the Senators' threat isn't limited to such situations.)

Uh_Clem (mail):
Well, given what's allegedly on the transcripts, anyone appointed by Blagojevich can reasonably be assumed to have paid a bribe (this thing is bleepin golden and I ain't bleeping givin it away for nothin) .

So, the bribe scenario you describe would appear to be operative.

That said, it's probably moot - who would be dense enough to accept an appontment from Blago at this point?
12.11.2008 5:05pm
D.R.M.:
Of course, if the Senate really doesn't want to seat somebody appointed by Blagojevich, they can always do a two-thirds concurrence to expel a member.
12.11.2008 5:10pm
Eugene Volokh (www):
Uh_Clem: I would think that anyone appointed by Blagojevich after the scandal has exploded would keep his nose extra clean, precisely because he'd know that there'll be a lot of scrutiny of the appointment. So it's at least quite possible, and in my view quite likely, that anyone whom Gov. Blagojevich appoints will not have paid a bribe for the seat.

D.R.M.: Possible, but that does require 2/3 rather than just a majority vote, and I take it there'd also be some question whether the power to expel is unlimited, or is only limited (as is the power to "punish its Members") to expulsion for misconduct ("disorderly Behavior," according to the Constitution). Powell reports on some legislative precedents suggesting that expulsion can only be for misconduct, perhaps even only for misconduct during this particular legislative session.
12.11.2008 5:21pm
Thorley Winston (mail) (www):
D.R.M.: Possible, but that does require 2/3 rather than just a majority vote, and I take it there'd also be some question whether the power to expel is unlimited, or is only limited (as is the power to "punish its Members") to expulsion for misconduct ("disorderly Behavior," according to the Constitution). Powell reports on some legislative precedents suggesting that expulsion can only be for misconduct, perhaps even only for misconduct during this particular legislative session.


That was my thought as well and I suspect that there might be more than a few members of the Senate who might be unwilling to vote out a member before s/he has taken office absent any actual evidence of wrong-doing. Also what if 34 members of the Senate pull an Obama and vote "present" -- is that enough to deny Reid the "concurrence of two-thirds" of the members or would they actually have to vote against expulsion?
12.11.2008 5:33pm
oldmath (mail):
How about the Candidate 0 option? :

"Unless I get something real good...shit, I'll just send myself, you know what I'm saying."
12.11.2008 5:38pm
Putting Two and Two...:
Not to give the craven governor any ideas, but what would happen if he appointed his wife? Could she "serve" for a week or so, then resign just before facing expulsion?

Would she get the pension? Something tells me that Mr. Blago's income is going to be pretty minimal for the foreseeable future...
12.11.2008 5:45pm
DiverDan (mail):
As an historical matter, the Senate has taken up the qualifications of a member to sit. Shortly after the Civil War, when Hiram Revels was elected as a Republican Senator from Mississippi, his qualifications were challenged in the Senate. It is true that that challenge was based upon his alleged lack of Constitutional qualifications; as a native-born African American (though a free black prior to the Civil War - he attended Knox College, a hotbed of abolitionism that had the temerity to admit blacks prior to the Civil War without regard to their race), the argument was made that, under the Dred Scott decision, he was not a Citizen prior to the ratification of the 13th Amendment, and thus had not been a citizen for the required 9 years. After a lengthy and acrimonious fight, Revels was seated as a U.S. Senator.
12.11.2008 5:47pm
Steve:
The Reconstruction-era precedent is consistent with the Powell decision, though, because nobody questions the Senate's right to examine the basic qualifications of its members (age and citizenship). The question is whether they can claim a more sweeping power.
12.11.2008 6:04pm
Sticky (mail):
Do you think that there's a distinction between Powell, which dealt with a chamber refusing to seat a legally elected member-elect, and the current situation where the very legality of the "election" itself is in doubt? It seems obvious that the Senate may refuse to seat an individual who just shows up and claims to be a senator-elect (although they pass all the standing qualifications).

Senator Reid and Al Franken have spoken this idea in relation to the current recount in Minnesota.
12.11.2008 6:05pm
Christopher Cooke (mail):
Would it matter that whomever Blago appoints was not elected? I would think that you could distinguish Powell on that basis. Adam Clayton Powell was elected by the voters to his seat in Congress. Whomever Blago appoints cannot claim that distinction.
12.11.2008 6:13pm
jbeuks (mail):
As "Sticky" at 6:05 noted, the same issue is percolating behind the Minnesota recount. Here we've been reminded of the long fight over the New Hampshire Senate seat in 1974, when the state authorities declared the Republican incumbent to have won the election, the Democratic challenger asked the Senate to seat him isntead, and the Senate (controlled by Democrats of course, in those days) eventually punted, by declaring the seat vacant and requiring the state to hold a special election, which the Democrat won. I vaguely recall a similar go-round in the House with respect to a seat in Indiana more recently.

The Powell case notwithstanding, the Senate (and maybe the House, too) seems to claim for itself at least the validity of a State's certification of the election results. Maybe not exactly on point, but ...
12.11.2008 6:20pm
MarkField (mail):
I'm inclined to agree with Christopher Cooke. While I think the Court was correct in Powell because he had been elected, I'm not sure that the same considerations apply to an appointment.
12.11.2008 6:32pm
ARCraig (mail):
"Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members"

Seems pretty straightforward to me.
12.11.2008 6:37pm
Eugene Volokh (www):
ARCraig: What's your reaction to the Court's fairly detailed arguments to the contrary?

Christopher Cooke, Mark Field: You're right that as a policy matter the "Voters have decided, Congress shouldn't second-guess this" argument wouldn't apply to a Blagojevich appointee. But the Court's rationale focuses more on what the Court sees as the original meaning of article I, section 5. And if the Court is right in saying that each House's qualifications judging power is limited to the constitutionally prescribed qualifications, it's hard to see how this original meaning argument could play out differently for elected Senators than for appointed Senators (since both derive their status from equally constitutionally endorsed processes).
12.11.2008 6:46pm
ARCraig (mail):
I honestly wasn't familiar with Powell v. McCormack, and after giving the case a brief scan and upon second thought, I agree. My initial post was just a gut reaction based on my own recollection of what the Constitution said (and I am most certainly not a lawyer, just someone interested in the subject). The clause says "Elections, Returns, and Qualifications", and in this hypothetical there would be no dispute over the legality of any of these so long as Blago was still Governor when he made the appointment.

So, my bad.

Along the lines of the distinction between election and appointment, though, would it make any difference that the former is listed in the clause but the latter isn't?
12.11.2008 7:09pm
newsreader:
A little precedent from the House of Representatives side (courtesy of the Wisconsin Historical Society):

In 1918 [Victor] Berger again won a seat in Congress, but the House of Representatives refused to permit him to take his seat for violating the federal Espionage Act. The previous year Berger had supported the anti-war statement of the Socialist party, which had denounced World War I as a tool of U.S. capitalism and imperialism. The government had also suspended mailing privileges for his newspaper because of his continued opposition to the war.

Wisconsin's governor, Emanuel Philipp, called a special election to fill Berger's seat in 1919, but voters again elected Berger to Congress. The House still refused to seat him. Berger ran once again in 1920 but was defeated by Republican William Stafford. Although he lost the 1920 election, Berger's espionage conviction was overturned and his mailing privileges were restored. In 1922 Berger ran for Congress and won. This time, the House allowed Berger to take his seat and he served for three successive terms.


If the Illinois governor appoints someone —anyone— then I think that person can be prosecuted and convicted under the 1917 Espionage Act. That'll take care of things until the remainder of the Senate term expires, an election can be held, and the conviction overturned.
12.11.2008 7:33pm
Dave N (mail):
ARCRaig,

Except that the relevant portion of the 17th Amendment provides:
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: 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.
As a result, gubernatorial appointments are Constitutionally valid.

I was discussing this issue with a friend yesterday. Powell seems on point. The New Hampshire model of declaring the seat vacant (which Al Franken may attempt to revive in Minnesota) is a different situation, since that dealt with the Senate deciding which of two contestants to actually seat.
12.11.2008 7:34pm
mls (www):
I don't think that the Senate could properly refuse to seat Blagojevich's appointee for lack of qualifications, but as noted by some of the comments, it is possible that the Senate's authority to judge elections could be extended to appointments. Put another way, one could argue that when the 17th Amendment was passed the intent was to give the Senate the same power to reject appointees whose appointments were the result of fraud or bribery just as it could with respect to elected Senators whose elections are the result of fraud or bribery. but this still wouldn't give the Senate the authority to reject an appointee just becasue of Blagojevich's bad character.

The appointed Senator could be expelled if he or she had actually participated in wrongdoing.
12.11.2008 7:36pm
Steve:
If the Illinois governor appoints someone —anyone— then I think that person can be prosecuted and convicted under the 1917 Espionage Act.

Huh?
12.11.2008 7:51pm
MartyA:
A more important question (at least to me) is, if the Senate as a body refuses to seat the person Blago appoints, Blago would probably have to give back his portion of the fee paid, but would Durbin, Reid and the others also have to give back their shares?
12.11.2008 7:51pm
Christopher Cooke (mail):
Eugene, if I were a law student, writing a neutral analysis of this issue, I would agree with you that Powell would seem to preclude the Senate's ability to refuse to seat someone whom Blago appoints (query, however, whether that appointee would have any remedy if Reid and/or other Senators, and not the staff, physically blocked the appointee from taking his/her seat).

However, if you read, especially, Justice Douglas' concurrence, I think you will agree that the fact that Adam Clayton Powell was elected by the voters was extremely influential. Now, it may be that the Supreme Court would stick with the Powell analysis of Article I, Section %, and the justiciability issues presented in that opinion, but I wouldn't be so sure with this court (especially on the justiciability/political question point). Anyway, I kind of hope Blago tries to appoint someone like his wife, just to see how the ensuing controversy would turn out. My guess is that if he appoints someone with a very clean reputation, maybe the Senate will seat the person, provided there is a special election soon. If he appoints someone with a less clean reputation, the Senate may act and then we will have an interesting legal challenge, possibly.
12.11.2008 7:55pm
newsreader:
If the Illinois governor appoints someone —anyone— then I think that person can be prosecuted and convicted under the 1917 Espionage Act.


Huh?


The 1917 Espionage Act, as it has been historically applied, allows to people to be tried and convicted for their political statements.

The 1918 Sedition Act, which extended the Espionage, has been repealed, it is true. But 18 U.S.C §793-4 are still in effect.

Professor Volokh can probably rattle off some of the famous cases, and fill us in on the finer details of how to apply the Act to the Illinois governor's Senate pick.
12.11.2008 8:03pm
Michael B (mail):
Via the Chicago Trib, the formal criminal complaint, United States of America vs. Rod R. Blagojevich and John Harris (pdf).
12.11.2008 8:09pm
Bama 1L:
Isn't the problem in Powell that the House gave the wrong name to what it was doing? The Court differentiated "exclusion" from "expulsion." If the Senate did it and used the right word, the Court would have enough room to distinguish from Powell.

I also wonder if each House's power to judge the explicit constitutional qualifications is unreviewable; i.e., if they don't like someone they can just suddenly declare that he's twelve and an alien.

Blago absolutely must appoint someone; it would be so much fun.
12.11.2008 8:44pm
Chicago:
I think the answer to the question "Could Senate Refuse To Seat a Senator Appointed by Gov. Blagojevich?" must be yes. If Governor Blagojevich appointed a 6-year Nigerian kid, then certainly the Senate could refuse to seat him. The question is whether the Senate could refuse to seat Governor Blagojevich's appointee simply because Governor Blagojevich appointed him. But the letter Eugene quotes asserts no such power -- it claims only the "Constitutional authority under Article I, Section 5, to determine whether such a person should be seated," which the Senate undoubtedly has. I'm inclined to think this was worded by someone familiar with Powell to hint at (but not expressly claim) broader authority than Powell might allow.
12.11.2008 9:33pm
MarkField (mail):
I think Christopher Cooke's reading of the context of Powell is correct. However, if I were an originalist and wanted to distinguish this case, I might very well argue (based on the Berger precedent) that the "original intent" of the 17th A differed. It would be interesting to know if there are other examples of exclusion. I'd guess there are from the Civil War era.
12.11.2008 9:37pm
Jimmy S.:
Well, the Senate did manage to hold up Reed Smoot's seating for four years based solely on the fact that the man was a Mormon. Of course, that was pre-Powell.
12.11.2008 10:21pm
Skyler (mail) (www):
I'm sure that he'll appoint someone who would be able to convince the Messiah to pardon him. After all, what's an appointment for if you can't use it for your own good?
12.12.2008 12:32am
TruePath (mail) (www):
A few points.

"Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members"

Uhh, sure but since he would be appointed how would they be judging the Election, Qualification (presumably in the constitutional sense) and given that the OED defines the relevant sense of return as an accounting of the winning of the election no, it's not clear whatsoever.

So one question is whether the 17th ammendment should be interpreted to implicitly extend the senate's power to judge the validity of appointments.

Even if you grant this there is a second question. The constitution does not say the senate can choose not to seat someone at their whim, rather, it gives them the power to judge certain matters. If it's apparent that the senate is making no attempt to judge those matters but rather acting arbitrarily have they the authority not to seat the individual anyway?

----------

However, unless Blago acts really fast (I like the wife scam) I would imagine the legislature would pass some referendum stripping him of this power shortly.
12.12.2008 3:39am
bacchys (mail):
It's interesting that the Court in '69 chose to read this power of the Senate narrowly, while other parts of the Constitution were read broadly.
12.12.2008 5:48am
Hoosier:
EV

Re: EV's 5:21

I agree that the (potential) appointment is not inherently tainted. For the Democrats, the best choice would be to rally together in the Senate and then tell (allegedly) Rotten Rod the name of the person whom he WILL appoint. This gets them a Democratic replacement for Obama without the pain of having to contest a special election.

Not that there is a GOP in Illinois these days. But one can imagine that the stink of this administration might throw some votes to a moderate GOP candidate, and especially south of 80; I'm not sure, but I think I heard somewhere that Blago has never even visited Springfield, and thinks that the capital of the state is Bridgeport. Add to that that there is no clear Demo favorite in the wings. So if the Repubs got wise and nominated, say, Mark Kirk . . . perhaps. Perhaps.

In any event, the Demos need to pick someone from outside Cook. Four governors from Illinois imprisoned withing my lifetime is more than enough. My native county is corrupt, and the Democratic Party in the county is beyond merely "corrupt." In fact, it is beyond repair. But I'll avoid adjective, since this is a family blog.

Richard J. Daley did a good job in driving the city under. Richie has done an excellent job in bringing it back to world-class city status, by correcting his dad's mistakes. Save this one. I doubt Richie will ever actually be CONVICTED of anything.

But, really, enough already.
12.12.2008 6:57am
Hoosier:
By the way, I forgot to show you a "Stupid Hoosier Trick":

The chap I'd theoretically like to see the Demoncrats (sorry, couldn't resist doing the blog-thang) appoint is Bill Daley.

He'd be excellent. But with his family name, the Demos wouldn't dare. And he's not from a part of the state that routinely produces Cardinals fans. So I must be ignored on this. I can't believe that you wasted your time reading this.
12.12.2008 7:02am
Bama 1L:
Uhh, sure but since he would be appointed how would they be judging the Election, Qualification (presumably in the constitutional sense) and given that the OED defines the relevant sense of return as an accounting of the winning of the election no, it's not clear whatsoever.

You're taking "election" to mean "vote held for the purpose of choosing an official" when it means simply "choice." In this case, the governor chooses the senator, that's the "election," and the senate is competent to judge.

If Blago's pick isn't "elected," then does the Emoluments Clause apply? Discuss.
12.12.2008 11:15am
Deep Lurker (mail):
Non-lawyer question: How did the "Elections, Qualifications, and Returns" clause apply in the Senate prior to the 17th Amendment when the Senators were chosen by the State Legislatures? Did a vote in a State Legislature count as an "election"?

Putting my whimsy hat on: What if a Legislature in the course of "empowering" a governor to make a temporary appointment explicitly allowed - or required - the governor to make the appointment on the basis of the highest bribe bid?
12.12.2008 3:34pm
Lucas:
Another wrinkle in all this: The Illinois Legislature is (I gather from the news accounts; I haven't seen specific language) seeking to strip Blagojevich of his appointment power and set a special election for the seat. But the Seventeenth Amendment requires that "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" (emphasis added). So Blagojevich, if he's feeling particularly stubborn, could refuse to call for a special election, and the legislature wouldn't have the power to set one itself (from a plain reading of the text, at least). Now in all likelihood there will soon be a new governor who would call for an election, but if the Illinois Supreme Court declines to declare Blagojevich disabled, and impeachment would take a few weeks, a special election would be similarly delayed and Illinois could be without a Senator for an additional month or more.

And if the legislature does set a special election on its own? Well, then we do get into a a pretty clear "Elections, Returns, and Qualifications" problem. I sincerely doubt any Senator would raise the issue or vote to exclude a (purported) Senator chosen at such an election, but it would seem to condone a direct contravention of the constitutional text.

One way out of this may actually be through the Seventeeth Amendment's proviso: "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." This, in rather clear contradistinction to the previous clause, does allow the state legislature to take a more active role in setting special elections. Maybe, instead of stripping Blagojevich of his appointment power, the legislature could simply provide that any such appointment would trigger a special election thirty (or sixty, &c.) days thereafter. It would limit the damage he could do with an appointment and stay nicely within the bounds of what the constitutional text permits.
12.12.2008 5:51pm
MarkField (mail):
Or, since the executive duty is mandatory, a court may be willing to issue a writ of mandate compelling him to issue a writ of election.
12.12.2008 6:50pm
Lucas:
True. Though that would require a respect for law that the governor has thus far not exemplified.
12.12.2008 6:59pm

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