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Surely a Sign of the Apocalypse:

Erwin Chemerinsky and I agree on something. In Dean Chemerinsky's words,

Like it or not, Illinois Gov. Rod R. Blagojevich has the legal authority to appoint Roland Burris to the U.S. Senate, and Burris, the state's former attorney general, should be allowed to take the seat vacated by President-elect Barack Obama. Senate Democrats are on weak constitutional ground in trying to deny a seat to a properly selected individual. Their claim to the power to exclude a lawfully chosen senator could create a dangerous precedent.

Adam K:
Correct me if I'm wrong, but hasn't the Illinois Secretary of State refused to sign the newly-appointed senator's commission (or whatever the formal document is called) certifying his appointment? If that is the case, and the endorsement of such a certification is required under Illinois election law, isn't Congress at least legally justified in refusing to seat Roland Burris until that certification is endorsed? Seems like the remedy here is against the Sec of State via writ of mandamus, not against Congress.
1.6.2009 2:27pm
Asher (mail):
I think most of the commentary, Adam, is written under the assumption that the Illinois Supreme Court will force the SoS to sign his papers shortly.
1.6.2009 2:33pm
Kenvee:
At this point, I agree with Adam. If the papers haven't been properly certified, then the Senate has every right to exclude him. Once they've been signed, then I agree that there's no legal justification for excluding him.

Of course, there's no reason he has to be given any privileges by the party either. Put him at the bottom of the pecking order on anything you want. Privileges are controlled by Congress; barring misconduct or constitutional disqualification, who actually sits is not.
1.6.2009 2:36pm
Dennis Nicholls (mail):
Of course court review may take some time, and by that time IL may be able to put together a quick special election, making seating Burris moot.
1.6.2009 2:38pm
Steven D. Schwinn (mail) (www):
Adam K: Illinois law authorizes the governor to fill the vacancy. It also imposes a duty on the secretary of state to "countersign and affix the seal of the state" to gubernatorial appointments. But I know nothing that says that the secretary of state's failure to comply with this duty invalidates an otherwise valid gubernatorial appointment. (The secretary of state's signature has repeatedly been described as merely "ceremonial.") In any event, the Senate couldn't use this omission to block Burris under Article I, Section 5, for failure to meet the Senate "qualifications" (because of Powell v. McCormack); and it's not an "election" or "return." The Seventeenth Amendment says nothing about a secretary of state's signature, and Illinois law--enacted under the Seventeenth Amendment--authorizes the governor alone to appoint a replacement. More here.
1.6.2009 2:46pm
Mike 'Ralph' Smith:
Once the appointment has been made, can the new governor or the IL legislature take it back? That's not a rhetorical question; people seem to assume they can, but I've yet to see any analysis.
1.6.2009 2:47pm
DrGrishka (mail):
More proof of apocalypse. I disagree simultaneously with Chemerinsky (not unusual) and Eugene (unusual).

I tend to think that the Senate has absolute authority to refuse to seat anyone. I think Powell was wrongly decided, and should be overruled, and that the present Court may do that. (Which would make Burris a good test case).

While I agree that this is a power that could be abused, that is true of any power (including power of impeachment or expulsion). We generally do not say that the power is lacking simply because it could potentially be abused.
1.6.2009 2:47pm
Charles Chapman (mail) (www):
Original Erwin Chemerinsky LA Times editorial and Eugene's concurrence cross-posted to the Daily KOS for the purpose of creating a more diverse, interesting and entertaining cross-discussion.
1.6.2009 2:47pm
AntonK (mail):
Well he hasn't signed (or been forced to sign) it yet, Asher, so the Senate seems to be on solid ground, legally at least.
1.6.2009 2:54pm
One Man's View:
Two observations and a question. Observations: 1) I wouldn't be so sure that the Illinois Supreme Court will order the Secretary of State to sign. I wonder at where they would find authority to do so under Illinois' Constitution. 2) Mike Smith has the right issue -- if the Burris appointment is valid and complete then the prospect of an after-the-fact election or a new appointment by the next Govenor after impeachment doesn't seem to solve the problem, any more than the change of an Administration at the Federal or State level can ever automatically undo some previous act. If the previous act was lawful then only a legal way of undoing/repealing it will suffice.

Question (for Eugene): I assume your take on the Burris nomination is premised on the ground that his case is indistinguishable from Powell, and I agree. But what is your opinion, vel non, of Powell. Certainly, the Founders would have been shocked at the idea that the Supreme Court could tell the Senate or House who to sit. If one were writing on a blank slate, would you still think the Senate lacked the power to reject Burris?
1.6.2009 3:03pm
Steve:
What if Blagojevich had appointed himself? Would the Senate really have no option?

I think the Senate is, at a minimum, entitled to investigate the Burris appointment for evidence of impropriety.
1.6.2009 3:04pm
Samual:
"I think most of the commentary, Adam, is written under the assumption that the Illinois Supreme Court will force the SoS to sign his papers shortly."

Which makes the commentary pinheaded (as in, how many angels dancing). The papers have not been signed. Illinois law and Senate rule requires that it be signed to be valid. Moreover, The Illinois Supreme court may no more act on this petition, than it did on the petition to remove the Governor (denied). And even those saying that the Senate must seat, don't argue that the Senate can't investigate before seating.
1.6.2009 3:14pm
PlugInMonster:
Once again, isn't Blago innocent until proven guilty? In fact Fitzy boy won't even indict!
1.6.2009 3:14pm
MarkField (mail):
Whether the IL Court would issue mandamus to the Sec'y of State has real potential for a great law school exam question. It's very similar to the issue actually decided in Marbury v. Madison (that Congress had no power to authorize the Court to issue a mandamus).
1.6.2009 3:19pm
Roger Schlafly (www):
Rush Limbaugh was wondering today whether the Senate would allow Burris to use the drinking fountain.
1.6.2009 3:24pm
Asher (mail):
Well he hasn't signed (or been forced to sign) it yet, Asher, so the Senate seems to be on solid ground, legally at least.

Except that the Senate doesn't need his signature. They have a standing rule, a policy, that they won't seat you without one, but I don't see how they have the right to uphold that rule when the state Secretary of State isn't giving his signature for no good reason. Otherwise, Democratic state Secretaries of State could hold up Republican Governors' appointments if they wanted to, and if the Senate wanted to take the Secretaries' side, they could. And that can't be lawful. The signature's just needed as a sort of notarization, to assure the Senate that the Governor really did make the appointment and that people aren't walking into the Senate with fake documents pretending to be Senator-designates. I don't think there's any doubt here as to whether Blagojevich really appointed Burris.
1.6.2009 3:37pm
Rodger Lodger (mail):
I suppose everyone is familiar with extreme irritation when the same fallacious legal argument is presented over and over in MSM. In this case it is the insistence by politicians and other assorted types that if the Senate Dems stall long enough, then Blago might be removed from office and his successor could make a brand new appointment. Of all people, I've only heard Pat Buchanan but paid to this claim, and economically, by analogizing to bills signed or vetoed by a governor later removed from office -- nobody will claim for a second that his official acts are retroactively invalidated. Why is Pat the only voice of note saying this?
1.6.2009 3:38pm
PubliusFL:
DrGrishka: While I agree that this is a power that could be abused, that is true of any power (including power of impeachment or expulsion). We generally do not say that the power is lacking simply because it could potentially be abused.

An absolute and unchecked veto over the choice of the senators' own replacements seems like a power particularly susceptible to abuse. At least expulsion and conviction after impeachment require a 2/3 majority in the Senate.
1.6.2009 3:47pm
ReaderY:
I think Asher has a good point. If a Democratic Secretary of State refused to certify a Republican Governor's appointee for no reason other than that he can and it's in his interests, could a Democratically controlled Senate refuse to seat the appointee for no reason other than that they can and it's in their interests?
1.6.2009 3:56pm
DrGrishka (mail):
Publius,

That the power could be easily abused also does not mean that another branch could somehow restrict it. Power to certify that both Houses concurred in teh identical legislation can be easily abused (only takes 4 people, Speaker, VP (or President Pro Temp) and each chamber's Clerk). Yet, courts do not adjudicate those disputes.
1.6.2009 4:01pm
Samual:
"Why is Pat the only voice of note saying this?"

Because it's kind of, so what? If it plays out long enough for another appointee to be seated. Buriss will be in Court, while someone else is Senator for the next two years.

OT, procedurally there is presently no complaint for Mandamus before the Illinois Supreme Court, only a petition to be allowed to file one.
1.6.2009 4:02pm
Sara:
"If a Democratic Secretary of State refused to certify a Republican Governor's appointee for no reason other than that he can and it's in his interests, could a Democratically controlled Senate refuse to seat the appointee for no reason other than that they can and it's in their interests?"

Only so long as the Republican minority allows it by not stopping all Senate buisiness.
1.6.2009 4:10pm
wfjag:

Once again, isn't Blago innocent until proven guilty? In fact Fitzy boy won't even indict!

PiM. I think this was answered on another post concerning the same subject, but I'll re-state the answer. The presumption of innocence applies only in criminal proceedings, and only at trial. There is no presumption of innocence as to the impeachment proceedings -- unless Illinois law provides for it -- and no one is presumed innocent before a criminal trial.

Accordingly, as to the matter under discussion, there is no presumption that the Ill. Gov. is innocent, and legally that appears to be an irrelevant issue. The legal issues are whether the US Senate can refuse to seat someone who meets the requirements set in the Constitution, and (as alluded to by DrGrishka) whether the courts have any say in or power to review the Senate's decision. The first issue also raises a lot of political considerations. And, while I agree with DrGrishka, I don't see any political will in the US Congress to assert it's authority as a co-equal branch of government with the same authority as the courts to intrepret what is and is not constitutional, so I don't foresee any challenge to the Powell decision.
1.6.2009 4:24pm
Asher (mail):
Only so long as the Republican minority allows it by not stopping all Senate buisiness.

Of course in the real world something like that would probably never happen, but to me it's absurd to say that any time a state Secretary of State decides, for whatever reason, that he doesn't care to certify an appointment, the Senate is justified in not seating the appointee. Besides, Illinois state law seems to require the SoS to sign the thing:

Sec. 5. It shall be the duty of the Secretary of State:
1. To countersign and affix the seal of state to all commissions required by law to be issued by the Governor.
2. To make a register of all appointments by the Governor, specifying the person appointed, the office conferred, the date of the appointment, the date when bond or oath is taken and the date filed.....
1.6.2009 4:25pm
subpatre (mail):
DrGrishka writes, "I think Powell was wrongly decided, and should be overruled, and that the present Court may do that."

Good grief! Has anyone bothered to read Powell before rendering their feelings about this? The Court's opinion quotes the Framers' debates at length, and they —the Founders— discuss this exact situation.
Quote:
On August 10, the Convention considered the Committee of Detail's proposal that the:
Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient.
The debate on this proposal discloses much about the views of the Framers on the issue of qualifications. For example, James Madison urged its rejection, stating that the proposal would vest
an improper &dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt., and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected as the number authorised to elect. . . . It was a power also which might be made subservient to the views of one faction agst. another. Qualifications founded on artificial distinctions may be devised by the stronger in order to keep out partizans of [a weaker] faction.
... In view of what followed Madison's speech, it appears that, on this critical day, the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the "indisputable right [of the people] to return whom they thought proper" to the legislature.

If the Constitutional qualifications of representatives is actually the Houses' role to judge, then post evidence for it. Powell included a ton of evidence against that view though.

But simply posting that your Feelings are that Powell is wrong —without a shred of legal foundation to it— should signal "whoa whoa whoa" to everyone reading it.
1.6.2009 4:30pm
Sara:
"Of course in the real world something like that would probably never happen, but to me it's absurd to say that any time a state Secretary of State decides, for whatever reason, that he doesn't care to certify an appointment, the Senate is justified in not seating the appointee."

Blago is absurd. It's absurd for a Governor under criminal investigation, on bail, and subject to impeachment proceedings to say he wouldn't appoint someone and then appoint somone, the next week. As to your other point, Illinois law could deem it signed, if it is of no meaning But it hasn't, at least not yet.
1.6.2009 4:38pm
MartyA:
We all know the democrats' hatred of blacks. If Senator Reid doesn't want another black man in his legislative unit than, as leader, it is his right to bar Mr. Burris as long as the democrats have the numbers to support their racism.
1.6.2009 4:49pm
Sara:
Exactly Marty, just look at the faces of leader of that Party, the president elect, and the Secrtary of State that is doing this!
1.6.2009 4:54pm
Patrick216:
What absolutely amazes me here is that Burris is being this aggressive about taking the seat. His appointment has no political legitimacy, although I admit that the appointment probably is legal.

But if you are Burris, why do you keep fighting? If he is seated, he'll be voted out of office come 2010, and possibly risk having the seat go to a Republican. He will not be given any respect by the Democratic caucus in the Senate and may not even be allowed to caucus with them at all, receive committee assignments, etc. He will lose any standing he had in Illinois Democratic circles. On top of it, he is endangering the Illinois Democrats because of the level of toxicity...

Now, I'm a Republican myself, so I don't mind the circus. I'm just wondering why, as a Democrat, Burris wants the ability to call himself a Senator for 2 years so badly that he's willing to throw his party completely under the bus to get it.
1.6.2009 4:59pm
Brian G (mail) (www):
What I don't get is that if the Secretary of State has to sign the appointment, and if the Secretary refuses to do so, then isn't it really the Secretary of State that has the appointment power? Just a thought.

In any event, once again many people are confusing bad politics with unconstitutionality and/or violation of the law. This is a political question. Were I a judge faced with this, I would invoke the political question doctrine and let the Senate work it out. The doctrine is not involed nearly enough anymore.
1.6.2009 5:01pm
MTinMN (mail):
Once again, isn't Blago innocent until proven guilty? In fact Fitzy boy won't even indict!



Since there was no inditement, how was Fitz able to order an arrest? It seems like to have an arrest, there should be charges. Or can US Attny's just have anyone arrested and then come up with the charges later?

IANAL, but seems like the system is broken a bit.
1.6.2009 5:02pm
guy in the veal calf office (mail) (www):
You can tell Democrats to stop banning blacks from public institutions til you're blue in the face, but they just won't listen. Harry Reid now joins the illustrious Alexander Stephens, Stephen Douglas, Mississippi Red Shirts, Ross Barnett, Orval Faubus, &George Wallace.
1.6.2009 5:04pm
Sara:
MT - a federal prosecuter can proceed first by complaint, as Fitz has done, leading to arrest and arraignment but then he has to go back and get an indictment.
1.6.2009 5:06pm
Sarcastro (www):
I would also like to play the race card in good faith, just like MartyA and the veal guy!

As Colbert said, did anyone notice that to get Obama out of the Senate they went so far as to give him a separate but equal branch of government? Hmmmmm?
1.6.2009 5:08pm
corneille1640 (mail):

But if you are Burris, why do you keep fighting? If he is seated, he'll be voted out of office come 2010, and possibly risk having the seat go to a Republican. He will not be given any respect by the Democratic caucus in the Senate and may not even be allowed to caucus with them at all, receive committee assignments, etc. He will lose any standing he had in Illinois Democratic circles. On top of it, he is endangering the Illinois Democrats because of the level of toxicity...

You may very well be right. However, a lot can happen in two years. People can have short memories, and for what it's worth, Burris appears to have a large constituency in the state. Moreover, even his critics tend to qualify their criticisms with something like "Although I have great respect for Mr. Burris...."
1.6.2009 5:17pm
DrGrishka (mail):
Subparte,

My disagreement with Powell does not rest so much on substance as on the view that the case is not justiciable.

Furtehrmore, to the extent it is justiciable, I think it is pretty clear that the Senate can refuse to seat (not just expel) a convicted felon or someone who is proven to have bribed his way into the Senate. There is no explicit Constitutional text reposing such power in the Senate, however. The power stems from Senate's general power to judge its own elections and returns. I do not see this case as being materially different.
1.6.2009 5:29pm
wfjag:

I would also like to play the race sympathy card in good faith, just like MartyA and the veal the Sarcastro guy!

Democrat controlled institutions are now turning away possible Senators without cause. Soon-to-be or maybe already-former-Democrat-Senator Joe Biden turned away from Movie theatre:

He's a heartbeat away from the presidency, but that apparently didn't help Joe Biden get a movie ticket Saturday night.

See Jan. 5, 2009 article from www.delawareonline now linked on The Drudge Report.

Oh the horror! Next we'll hear that Caroline Scholossberg was forced to drink tap water!

And,

But if you are Burris, why do you keep fighting?

How long do you have to serve in the US Senate before you qualify for the retirement?
1.6.2009 5:30pm
man from mars:
Does someone have links to the specific laws and rules the Senate used to justify the paperwork requirements they claimed legally justified their refusal to seat Burris?

How is what the Senate did different from refusing to seat Burris on the grounds his birth certificate is not "certified" by the Secretary of State; or on the grounds that he has no "official certification" that he was actually a citizen for 9 years?
1.6.2009 5:35pm
Roger Schlafly (www):

His appointment has no political legitimacy, although I admit that the appointment probably is legal.
Huhh? It is a legitimate appointment. Illinois would not get its Senator any other way. And yes, Blago is innocent until proven guilty.
1.6.2009 5:35pm
Sarcastro (www):
I'm pretty sure delawareonline posted that Biden movie theatre story in a well-calculated plan to get sympathy for Biden.

This Senate Seating is a Very Important Issue, as can be seen by my Capital Letters. Harry Reid has so much to lose if he seats the guy, and Burris has so much to gain if he gets seated! I'm surprised there hasn't been a cage-match yet.

I know I said it about Operation Chaos, and the Birth Certificate thing, but THIS time I'm sure: this will be the end of the Democratic Party!
1.6.2009 5:41pm
pluribus:
wfjag:

How long do you have to serve in the US Senate before you qualify for the retirement?

When Spiro Angew resigned the vice-presidency, it was reported that an elected official had to serve five years in federal office to qualify for a federal pension. So he protested his innocence right up to his five-year anniversary and then copped a plea and resigned. Now I realize the law may have changed in the last 35 years or so . . . .
1.6.2009 5:48pm
man from mars:
Rodger Lodger asks:

Of all people, I've only heard Pat Buchanan but paid to this claim, and economically, by analogizing to bills signed or vetoed by a governor later removed from office -- nobody will claim for a second that his official acts are retroactively invalidated. Why is Pat the only voice of note saying this?


Rodger, I don't know.

All I can say is that I think we are in the midst of a sea change in the way people generally conceive of the law. I think the country was founded on respect for law qua law, and that honoring the law qua law was a general cultural principle adhered to until quite recently. The law was viewed as a way to protect the unpopular against mob rule. This view was so widely held by The People that they were able to check illegal acts by the legislature.

For some reason, in the last 20 years or so, there has been a gradual lack of respect for the law. Now, most people view the law as a tool to punish the unpopular and reward the popular and powerful. This view is customary, in fact, in most countries, but the general adherence of it by the populace is very new. Adams defense of the suspects in the Boston Massacre quintessentially illustrates the respect for law over popular hysteria that once characterized the country.

It is difficult to prove something like a general cultural shift in values, but there are a few clear examples. The Lori Drew prosecution, and the popular support of that prosecution. The Skilling prosecution (for "theft of honest services") and the popular support of that. The Stewart prosecution, and its popular support. The Libby prosecution. And the various increasingly surreal rationalizations about Burris.

In all these cases, people generally seem very willing to bend the law in order to punish about whom they have been whipped up into a frenzy by the media. And this is very, very different from the situation 50 or 100 years ago. Then, yes, there were also attempts to bend the rules - but those attempts were ferociously resisted by courts, by the major organs of the press, and by the intellectuals. That is no longer the case.

I do not know why this is the case. I do not know if it is a good thing or a bad thing - maybe we are better off with rule by media than rule by judges. I just know it's a trend that is encroaching on more and more spheres of public life (this is the first I have seen it on such a clear structural constitutional matter, for example).
1.6.2009 5:48pm
RP Ashton (mail):
This may be a naive question but: How can the Senate take an action like not allowing Mr. Burris to take his position without taking a vote? It seems fundamental to me that an action of this substance and magnitude would require some type of formal and public activity be performed by my representatives.
1.6.2009 5:55pm
Public_Defender (mail):
The no certification rationale is unconstitutional. The Constitution says nothing about a certification from the SOS, so it ain't a requirement.

On the corruption issue, I think the Senate at least needs to hold hearings to decide what role corruption did or did not play in his selection.

I'm not sure the Adam Clayton Powell precedent has much to bear on this. The blatant racism of the time could easily have pushed Supreme Court to act, and the Court is much, much more conservative these days.

The Senate may set a bad precedent by not seating Burris, but the courts would probably set a worse precedent by getting involved. The remedy for Senate abuse of its seating power (or whatever it's called) is voter retaliation. Over the past 20 years, the people have shown that they can throw the bums out when the bums get to full of themselves.
1.6.2009 5:58pm
wfjag:

I'm surprised there hasn't been a cage-match yet.

Great idea. This is the type of reasoning that shows why Sarcastro should be our Philsopher King! A WWE grudge match to determine the Junior Senator for Illinois. 2 of 3 pins. Prime-Time TV on the 3 broadcast networks. "Bad Man" Burris, the Terror of Chicago's Southside versus "Horrible Harry the Ripper" Reid.*

(Of course, we could do it as Pay for View and use the proceeds to pay for the latest bailout, taxpayer funds handout, pork barrel, economic stimulus package.)

Couldn't be much more absurd and would be much more entertaining than the Theatre of the Farce now unfolding (and would likely get better Neilson ratings than whatever program Fox was then airing).

*The second billing will be a mud wrestling match between Andrew Cuomo and Caroline Schlossberg.
1.6.2009 6:00pm
KeithK (mail):

Once the appointment has been made, can the new governor or the IL legislature take it back? That's not a rhetorical question; people seem to assume they can, but I've yet to see any analysis.

The 17th Amendment says:

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.

Burris is a temporary appointment. Typically these appointments last until the next Congressional election cycle, which would be Nov. 2010 in this case. But nothing in the text says that the Illinois legislature couldn't dircet that a special election be held sooner. Burris' appointment would end as soon as such an election were held and the results certified.

The Illinois legislature reportedly back off their plans for a preventative special election because the Democratic leadership was afraid that a Republican might win the seat. Given that partisan motivation and the race issue with Burris I suspect that they would not nwo authorize a early special election to repalce Burris even though it sems well within their power.
1.6.2009 6:08pm
KeithK (mail):

The no certification rationale is unconstitutional. The Constitution says nothing about a certification from the SOS, so it ain't a requirement.

I'm stretching here, but could you construe the words "empower the executive" in the 17th amendment to mean "empower the executive branch of the state"? If so then the constitutional power of temporary appointment could be co-vested between the governor (names the appointed person) and SoS (certifies the appointment).

I think this is hogwash, but I'm throwing it out there.
1.6.2009 6:12pm
Madison:
"The no certification rationale is unconstitutional. The Constitution says nothing about a certification from the SOS, so it ain't a requirement."

The constitution does not say anything about alot of things that are constitutional. Nonetheless, the certification is a requirement of a return, which is explicitly provided for in the constittion, of which the Senate is the Judge. Moreover, the 17th amendment does not limit how the State legislature empowers the executive authority to appoint, and the Secretary of State is in fact part of the State's executive.
1.6.2009 6:22pm
Skyler (mail) (www):
Subpatre wrote:



But simply posting that your Feelings are that Powell is wrong —without a shred of legal foundation to it— should signal "whoa whoa whoa" to everyone reading it.


Powell is irrelevent. The Constitution clearly gives all power to judge the returns and elections to the legislature, not the judiciary. The courts had no authority to even decide Powell.

If the courts ruled that war can only be declared by the judiciary that would be equally unconstitutional. The text is clear and unambiguous that only the legislature will judge the returns. Whether that is wise is an entirely different question.
1.6.2009 6:29pm
Repeal 16-17 (mail):
I tend to think that the Senate has absolute authority to refuse to seat anyone. I think Powell was wrongly decided, and should be overruled, and that the present Court may do that. (Which would make Burris a good test case).


In U.S. Term Limits, Inc. v. Thornton (1995), the five Justice majority approvingly cited Powell for declaring State imposed Congressional term limits Unconstitutional. All of those five Justices are still sitting on the Supreme Court, so I doubt that Powell would be overruled.
1.6.2009 6:36pm
pluribus:
I just heard that Dianne Feinstein, chairman of the Rules Committee, has said Burris should be seated. Dianne is not the sharpest knife in the drawer (I lived through her administration as mayor of San Francisco), but she is a big knife, and she has some sway. It could be that her opinion is more important than all the Cheminskys, Amars, Tribes, and Powells of the world combined. This is, at bottom, a political controversy, however fascinating the legal questions it presents.
1.6.2009 6:57pm
ChuckC (mail):
I can't wait to see what Blago will attempt to do with his pardon power. Free all of the Illinois convicts?
1.6.2009 7:16pm
Kazinski:
Illinois' Senator is subject to selection by Illinois law, which requires certifications by the Sec. of State. But the law also says that the Sec. of State "shall" certify the person designated by the Governor. So that leaves a few possibilities 1) Burris sues the Sec. of State and the courts order him to certify Burris as required by law. 2) the courts punt, or delay, waiting to see how the whole thing comes out, 3) the Legislature changes the law before the courts order the Sec. of State to certify Burris, making the issue moot.

But as things stand now, I think Burris would be likely to succeed in the Illinois courts in forcing certification. Then it would be a coin toss as to whether he can get the Federal courts to enforce his claim and force the Senate to seat him.
1.6.2009 7:21pm
RPT (mail):
"Roger Schafly:

Rush Limbaugh was wondering today whether the Senate would allow Burris to use the drinking fountain."

With the "magic n-----" song playing in the background, I suppose.
1.6.2009 7:29pm
subpatre (mail):
There are rocks and hard places:
- If Powell is wrongly decided, then the term limits decision was wrong too.
- If courts had no authority to decide Powell, then the Senate may exclude Republicans.
- If innocent until proven only applies in criminal cases, then President Clinton's acts while facing impeachment are (present tense) nullified and invalid too.
- Ditto on 'tainted', 'corrupt', and other fill-in-the-blank descriptions of the appointment process.

I know that many comments here favor a European-style legislature, a Senate-of-Lords that defines its own members. That was considered at the Founding and rejected; even Hamilton rejected it. The Constitution gives the Senate no power to set qualifications for seating, so they don't have it.
1.6.2009 7:31pm
RPT (mail):
"Pluribus:

I just heard that Dianne Feinstein, chairman of the Rules Committee, has said Burris should be seated."

At least she doesn't want him as head of the CIA.
1.6.2009 7:35pm
rarango (mail):
Using the IANAL defence here, I havent got the remotest idea what laws apply--But this whole contretemps is a great example of why I rely on this site, and its commenters, for analyses. Thanks to all who have weighed in. It makes for fascinating reading for a lay person.
1.6.2009 7:53pm
BillW:
Kenvee: Of course, there's no reason [Burris] has to be given any privileges by the [Democratic] party either. Put him at the bottom of the pecking order on anything you want. Privileges are controlled by Congress; barring misconduct or constitutional disqualification, who actually sits is not.

Maybe the Republicans will invite him to caucus with them?
1.6.2009 8:19pm
pluribus:
subpatre:

The Constitution gives the Senate no power to set qualifications for seating, so they don't have it.

You are avoiding the main thrust of the arguments on these threads, namely that Art. I, Sec. 5, makes the Senate "the judge" of the "returns" of its members. Amar and others have argued that this is just what the Senate will do if it examines the process by which Blagojevich appointed Burris. They will not judge Burris's "qualifications," as the House tried to do in Powell. Yes, Burris is over thirty years of age, he has been a citizen for more than nine years, and he is an inhabitant of Illinois. What does that tell us about the "return" of his appointrment? Nothing, I submit.
1.6.2009 8:45pm
Repeal 16-17 (mail):
The "return" in this case is that the Illinois Governor appointed Burris, as permitted by the 17th Amendment and Illinois law. Article I, Section 5, Clause 1 does not grant the Senate the authority to make an independent judgment as to the wisdom of this appointment.
1.6.2009 9:00pm
DrGrishka (mail):
Subparte (and Repeal)

US Term Limits is distiguishable because the Constitution does not give states the authority to set any qualifications (such as lack of previous service). However, it does give the authority to judge its own elections. Thus, the issues at hand are very different.

Subparte:

Yes, the Senate has authprity to exclude Republicans. That would be an abuse of power. But just because power can be abused doesn't mean it is absent. I have no idea what your reference to Clinton means. No one is suggesting that all of Blagojevich's acts are void. He still signs bills and whatnot. He had the power to appoint Burris. But Senate has the power not to seat him because it views the appointment as corrupt.
1.6.2009 9:04pm
Repeal 16-17 (mail):
US Term Limits is distinguishable because the Constitution does not give states the authority to set any qualifications (such as lack of previous service). However, it does give the authority to judge its own elections.


According to the Supreme Court, all that means is that the Senate (and the House in the case of Representatives) can make sure a Senator was in fact elected or appointed. Burris was legally appointed, so he must be seated (Powell v. McCormack). What U.S. Term Limits shows is that a majority of the current seated Justices believe Powell was correctly decided.
1.6.2009 9:38pm
DrGrishka (mail):
Repeal:

I don't think that US Term Limits says much about what current Justices think about Powell. For the reasons stated previously, the cases are distinguishable. I think Kennedy's concurrence is especially instructive. He (while joining the majority) based his opinion on the fact that states may not create a patchwork of qualifications. That is a far cry though from the question of whether the federal body (Senate) can exercise its constitutional power.
1.6.2009 9:52pm
Procedure_counts:
The seal of the SoS is an element of the state law governing the appointment process of a Senator in Illinois. Lacking the seal, the appointment has not been completed.... like a birth certificate from a foreign country but without an apostille or state seal. The senate does not have to accept it until it conforms to the law of the state. It may be valid, but isn't properly certified yet.
1.6.2009 10:01pm
Madison:
"all that means is that the Senate (and the House in the case of Representatives) can make sure a Senator was in fact elected or appointed."

Even if that is all that means, you still have not dealt with the certification required by Illinois law and by Senate rule.

Let's put it this way. You are the Judge. At the least, being a Judge, requires you to apply rules of evidence. Here, the rules of evidence require the State SOS signature and the Illimois State Seal be on the document that shows the person is qualified. This is a tarditional requirement, since the founding of the Republic. If you don't have it, there is something seriously wrong. The Senate isn't required to rely on news reports and uncertified documents and there is nothing the Court can or should do about that.
1.6.2009 10:02pm
Bill Kilgore:
I think Reid should fashion some-sort of a compromise wherein Burris receives credit for 3/5 of a Senate seat.

In any case, I am pleased to see that on this issue, as well as a few others that are bubbling up, the Democratic party has abandoned all that Constitutional fidelity nonsense and reverted back to an interpretive approach with a touch more malleability. Not great for future law students, but a lot more fun to watch.
1.6.2009 10:05pm
subpatre (mail):
DrGrishka writes, "Yes, the Senate has authprity to exclude Republicans."[sic]

. . . says it all right there. You have no legal argument. This is about raw power and the illusion of logic and legality .

You fail to address that the writers of our Constitution specifically said the Senate had no such power. They explicitly considered your opinion, and they voted it down; deliberately changing the wording so the Senate would not have that authority.

Those that ratified our Constitution —and their constituents— considered and voted on ratification with the explicit, public opinion the Senate did not have the authority you claim. They deliberated on your opinion, and knowing your opinion was prohibited, ratified the Constitution.
1.6.2009 10:30pm
man from mars:

But as things stand now, I think Burris would be likely to succeed in the Illinois courts in forcing certification. Then it would be a coin toss as to whether he can get the Federal courts to enforce his claim and force the Senate to seat him.


You're thinking is too bookish and lawyerly. You have to look at the politics. Nobody wants to follow the law here and nobody will.

The people have spoken: they do not care about the law in respect to Blagojevic. He was the subject of a hostile press conference, so the law does not apply.

The federal legislature has spoken: they are going to bar Blagojevic, let the rationalization come later.

No Illinois court will grant mandamus to the benefit of such an unpopular person as Blagojevic and to the detriment of key figures in Congress. If they do grant it, the Secretary of State will not obey it. If he does obey it, the Senate will just concoct some other rationalization not to seat Burris (maybe he needs the U.S. Attorney General to certify he's been a citizen for nine years, for example).
1.6.2009 11:15pm
DrGrishka (mail):
Subparte:

First, I do not believe that my argument was addressed by the Framers. They simply stated that Senate cannot vary qualifications from time to time. But they did authorize the Senate to decide what constitutes a valid election or appointment. For instance, if there was a bought election the Senate could refuse to seat the winner, even if the winner did not authorize, participate, or even know about the fix. The Senate gets to judge the election results. It also gets to judge appointments.

I did not mean to suggest that the Senate can exclude Republicans for being Republicans. But certainly, a majority of the Senate, if it chose to abuse its power, could simply find that no Reoublican was actually elected.

And finally, even if such behavior in fact violates the Constitution, it does not follow that courts are competent to grant relief.
1.6.2009 11:37pm
man from mars:

But they did authorize the Senate to decide what constitutes a valid election or appointment.

Then why did they only give the Senate power to judge Elections and not Appointments? Do you actually have any evidence for your claim?
1.6.2009 11:59pm
Skyler (mail) (www):
Subparte, what do you propose is the purpose of section 5?

It seems to me that the intent was to prevent someone appearing before the legislature claiming the bona fides of being a senator or representative even though these bona fides are the result of some form of corruption. Court cases would take too long to settle the issue, and there is risk that the state government that sends the scoundrel to the senate or house would be equally unlikely to indict or even investigate something that exposes their corruption.

The Constitution grants the legislature its own authority to be the judge in this matter. Any system can be abused, and there is certainly potential for abuse here. But where is abuse more easily perpetrated, in a legilative body made up of a hundred or hundreds, or a judicial body where only five have to agree?

There's no magical reason why the judge of the returns should be one branch over another, but the Constitution clearly and unequivocally grants the power to the legislature.
1.7.2009 12:11am
Procedure_counts:

It seems to me that the intent was to prevent someone appearing before the legislature claiming the bona fides of being a senator or representative even though these bona fides are the result of some form of corruption.
I think the better interpretation is that they are empowered to judge the bona fides, and not the process that created them.


Court cases would take too long to settle the issue
Agreed....


and there is risk that the state government that sends the scoundrel to the senate or house would be equally unlikely to indict or even investigate something that exposes their corruption.
If a state wants a to send a scoundrel to represent them, they are damn well entitled to do it.


There's no magical reason why the judge of the returns should be one branch over another, but the Constitution clearly and unequivocally grants the power to the legislature.
And it grants the power to check actions of the legislature that violate that constitution in the Supreme Court.
1.7.2009 12:28am
subpatre (mail):
DrGrishka writes, "I did not mean to suggest that the Senate can exclude Republicans for being Republicans. But certainly, a majority of the Senate, if it chose to abuse its power, could simply find that no Reoublican was actually elected."[sic]

. . . says it all right there. You have no legal argument. This is about raw power and attempting an illusion of logic and legal rhetoric.

It's also so old and worn. Over 200 years ago the Founders and Framers, the public and the Ratifiers all considered this exact, partisan feud situation (political parties had not even been invented yet, so the parallel is far closer than Democrat versus Republican) and they rejected it.

Too, your argument hangs on the Senate possessing a power because the Constitution doesn't bar this exact authority. Unfortunately the Constitution does say —explicitly— that powers not delegated by the Constitution are barred to the federal government. Not_Granted == Barred. The Senate does not have [assuming the facts currently in evidence] the legal right to deny Burris' seat.


DrGrishka writes, ". . . a majority of the Senate, if it chose to abuse its power . . ."

Madison used almost those exact same words, arguing the power was ". . .too important to be exercised by a bare majority of a quorum, and, in emergencies, [one] faction might be dangerously abused"; so the Convention voted to change the wording so a Legislative majority was prohibited from doing exactly that.
1.7.2009 12:31am
man from mars:
Tribe has a piece in Forbes where he argues that Burris seat can be denied by the Senate.

Tribe's reasoning is - well, it's the magic words you'll find in every statist rationalisation for exapanding government power: "by extension". (Sometimes simlar magic words like "by analogy" or "penumbral" or "policy considerations" are used):


The fact that he is indisputably "qualified" in the constitutional sense has no bearing on the authority of the Senate under Article I, Section 5 to serve as the sole "Judge of the Elections"--and, by extension, the temporary appointments--of would-be members.


I guess I sound like a broken record, but I cannot believe how many lawyers treat arguments like this seriously. Anyway, an Election is one thing. An Appointment is a distinct thing. The Senate has the power only to judge the former, not the latter. Hence the term "Elections" and not "Elections and Appointments."

If Tribe, Amar, Reid, and the other wise rulers of our country think that Congressional power should be "extended" to judge Appointments, they can amend the Constitution.

Until such time, Congress has no such Constitutional power, no matter how many analogies, extensions, anecdotes, press conferences, op-ed pieces, or moving policy arguments statists repeat.
1.7.2009 12:37am
Skyler (mail) (www):
P_C said,


If a state wants a to send a scoundrel to represent them, they are damn well entitled to do it.



I think you misunderstand my scenario. It's not that the state wants to do so, it's that certain powers in the state are not following the law.

For instance, say the vote is talled such that Candidate A is ahead, yet the Secretary of State says that Candidate B wins, contrary to fact and law, and sends Mr. B off to DC to take his seat in the legislature. Clearly the "state" did not want to send the scoundrel, they voted for someone else. While the millions of people in the state try to coordinate and take action against this corrupt act, the Senate or the House have the authority to deny Mr. B a seat.

So how is this different than Blagoj corruptly selling an appointment? The millions of people in Illinois are acting to investigate the goings on, but can't act quicker than an allegedly corrupt governor could sell the seat off. This is exactly what section 5 was intended to address. The legislature has been given this power and it is a very weird reading of very plain English to claim that the power does not exist for no other reason than you just don't like it.
1.7.2009 5:26am
DrGrishka (mail):
Subparte:

Repeating yourself rather than addressing the argument I am making (bolding nothwithstanding) does not add much weight to your argument.
1.7.2009 8:58am
pluribus:
man from mars:

Anyway, an Election is one thing. An Appointment is a distinct thing. The Senate has the power only to judge the former, not the latter.

You avoid the word "returns" entirely. You argument that the Senate can judge an election but not an appointment is conclusory and leads to an untenable result: elections must be done properly but appointments need not be. Why should the Senate's power to judge be treated differently for elections and appointments, when the purpose of both is the same: to choose a senator? Construct an argument that is both principled and takes account of all of the relevant constitutional text and you may have greater success in persuading me. For now, Tribe's argument seems to me to proceed on surer grounds, both textually and logically, than yours.
1.7.2009 11:22am
Charlie (Colorado) (mail):
I guess I'm getting old and curmudgeonly, but I've got to say that the notion that the government or a member thereof can't do something because it's "absurd" seems less than convincing.

I have to say, though, that it does seem, to a nonlawyer logician, to be pretty straightforward:

- Blagojevich has not been impeached and I don't see where a criminal complaint without even an indictment impairs his power as Governor;
- the statute appears to say that the Sec'y of State shall sign the certification; it doesn't appear to allow him any discretion. It wouldn't appear that the Illinois Courts are in any way impeded from enforcing that statute;
- whether or not the Adam Clayton Powell case was, in some sense, correctly decided doesn't seem to make much difference; the precedent is set and seems, politically, unwise to mess with.
- similarly, as others have noted, it would be more an exercise of rank political will, instead of legal reasoning, to imagine that an impeachment and removal of Blagojevitch now could be used to prevent this appointment from being valid.

it would seem the inference ought to be that Harry Reid is stuck.
1.7.2009 1:15pm
Parenthetical:
Man from Mars:

Does someone have links to the specific laws and rules the Senate used to justify the paperwork requirements they claimed legally justified their refusal to seat Burris?


Senate Rule II governs the form of returns (which have been styled as "certificates" of election/appointment since at least the late 19th century). Paragraph 2 specifically requires that the name of the Secretary of State countersigning the certificate must be entered in the appropriate journal.

Rule II also describes the form of these certificates, which includes the seal and countersignature of the SoS, the Senate prefers. The language introducing these forms explicitly makes the use of these forms optional. States that have authorized some other form are, by precedent, accepted by the Senate when the form contains "all the requirements of the form suggested by the Senate." (Congr. Rec. 98:1 p.3.)

2 U.S.C. 1 likewise requires the countersignature for certificates of election (section 1b), but I don't think that the form of the certificate of appointment is ever mentioned in Title 2.

As for precedent on scrutinizing the certificates, the Senate has resolved to "correct" some irregularities in the certificates. It has likewise resolved to seat Senators when there was some delay in transmitting the actual return, but the Senate was satisfied (for example by a telegram asserting that there was a delay) that the certificate was forthcoming.

What's noteworthy about the exceptions is that Senate always acted pursuant to resolution in which the majority concurred (for an irregularity or delay) or a unanimous request from the chair (when a proper State form rather than the Senate form was laid before the chamber) was at issue.

Conversely, the Senate has a lengthy history of entertaining challenges to the returns. Modern practice is to refer challenges to committee for investigation (for example when two people show up with a certificate of appointment, both of which were facially valid). Sometimes the Senate will seat a senator without prejudice to the Senate later resolving the issue. At other times, it refused to seat the challenged senator pending final resolution.

The Government Printing Office publishes Riddick's Senate Procedure, describing rules and precedents, online. For a survey of analogous House precedents see Deshler's and/or Hind's Precedents (also online at GPO).
1.7.2009 2:42pm
man from mars:
Parenthetical,

Thanks, great post. Interesting and informative. The litigation over this would have been really interesting, it's almost a shame it now looks like Reid will capitulate, avoiding interesting litigation. Wouldn't it have been awesome to hear Marbury cited for its holding or dicta on powers of mandamus and not for its holding on judicial review!

pluribus

Not sure what you are looking for in the way of "principled" constitutional argument. The principle of enumerated powers allows the legislature only powers expressly granted by the Constitution. The power to judge Elections is expressly granted. The power to judge Appointments is not. I do not see what "principle" can be plainer than looking at the words of Art. 1, Sec. 5.

It is true that if the Senate were only actually questioning the return itself - questioning the signature - they would have a less frivolous argument, for example using the information Parenthetical found. But that was not Tribe's point. Tribe was trying to argue the Senate can treat an Appointment like an Election and actually judge it (rather than its returns). That would be manifestly ultra vires.
1.7.2009 3:44pm
Parenthetical:
man from mars:

The power to judge Elections is expressly granted. The power to judge Appointments is not. I do not see what "principle" can be plainer than looking at the words of Art. 1, Sec. 5.

As we debated earlier, Art. 1, Sec. 5 also confers on Congress the power to judge "Returns." I find it unremarkable that the Senate may inquire into the lawfulness of a return, including those that prove an appointment.

A return that is a product of bribery would be unlawful. The Senate may legitimately investigate that allegation. Should a majority of senators concur that the evidence shows Burris' return is the product of bribery, the Senate could refuse to seat Burris.

Sen. Reid's early bloviations suggested that he's already made up his mind. The decision, however, is not Reid's to make. That power belongs to the Senate, before which there is no evidence yet. For now, the Senate is considering only the absent countersignature.

There may be some elasticity in what constitutes an "unlawful" return. Perhaps the Senate will try to stretch this standard until it breaks. Many of the hypotheticals in these comment threads certainly stretched judging "returns" beyond what I can find in Art. 1, 5.
1.7.2009 7:32pm

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