Wednesday, December 31, 2008

Can the Senate Block Burris?

Illinois Gov. Rod Blagojevich's appointment of Ronald Burris to fill President-Elect Obama's Senate seat is by now a too familiar story.  The NYT reports today what we also expected:  Senate Democrats will seek to block the appointment.

But can they do it?

This is the hot topic in the blogosphere.  I'll outline the contours of the debate; links follow.

Article I, Section 3, of course, sets the age, citizenshp, and residency qualifications for senators; there's no serious question that Burris meets them.  And under Powell v. McCormack, the Senate could only refuse to seat Burris if he didn't meet these.  Several commentators end there: The Senate can't block Burris because of Powell.

But Article I, Section 5, empowers the Senate to "be the Judge of the Elections, Returns and Qualifications of its own Members."  There was no election--Burris was appointed--and there's no question about Burris's qualifications.  But the Senate may be able to block Burris based on flawed "Returns"--the governor's appointment--as long as this isn't an end-run around Powell

And the Seventeenth Amendment permits a state legislature to empower the governor to fill a Senate vacancy "until the people fill the vacancies by election as the legislature may direct."  The Senate may be able to block the appointment based on an improper executive appointment.  Reading the Seventeenth Amendment to modify Article I, Section 5, this approach may get around the restriction in Powell

Jack Balkin and Mark Tushnet at Balkinization have the best analysis and commentary.  The Huffington Post reports on the views of "legal scholars" here; DailyKos here; the Faculty Lounge here.


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