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.)
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?
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?
"Unless I get something real good...shit, I'll just send myself, you know what I'm saying."
Would she get the pension? Something tells me that Mr. Blago's income is going to be pretty minimal for the foreseeable future...
Senator Reid and Al Franken have spoken this idea in relation to the current recount in Minnesota.
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 ...
Seems pretty straightforward to me.
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).
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?
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.
Except that the relevant portion of the 17th Amendment provides: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.
The appointed Senator could be expelled if he or she had actually participated in wrongdoing.
Huh?
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.
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.
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.
"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?
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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.
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.
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.
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.
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
bribebid?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.
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