Tuesday, January 6, 2009

Burris Blocked, Constitution Violated by Senate

UPDATE, 1/10:  Commenter J.D. Mekeel posted a link to the Ill. Sup. Ct.; see comments.  Thanks, J.D.

UPDATE, 1/7: Here's a link to Dean Erwin Chemerinsky's op-ed in the LA Times.  (Thanks to Patrick O'Donnell at Ratio Juris for the tip.)

UPDATE, 1/7: It looks like Senate Democrats may be looking for a resolution.  The Dems have no constitutional basis for insisting on the Illinois Secretary of State's signature, though: The Seventeenth Amendment says nothing about a Secretary of State's signature; Illinois law (enacted under authority of the Seventeenth Amendment) authorizing Blagojevich to appoint a temporary replacement does not require it; and the Senate cannot require it under Article I, Section 5 (for reasons below).  If the signature is their solution, it's still unconstitutional.

The NYT just reported that the Senate, as expected, blocked Burris.  Read here why I think this violates the Constitution (more on this particular act below); I've also posted here and here.

According to the report, Burris found his way today to Senate Secretary Nancy Erickson, to whom he presented his credentials--an appointment by Governor Blagojevich pursuant to the Seventeenth Amendment and Illinois state law, but minus a signature from Illinois Secretary of State Jesse White (who has refused to sign the appointment).  Erickson rejected Burris's credentials because his appointment letter did not comply with Rule II of the Senate standing rules, which requires signatures of both the governor and the secretary of state.

In other words:  The Senate denied Burris because of his lack of qualification.

This is an appalling disregard of Article I, Sections 3 and 5, and Powell v. McCormack, which together say that the Senate may not block Burris if he meets the basic, minimal qualifications of citizenship, residency, and age.  The only way the Senate could justify this move is by reading Rule II as a requirement for the "return" (not "qualification") under Article I, Section 5 (which also allows the Senate to judge "returns" of its members).  But this is a tenuous argument, at best:  Burris was not "elected," and he had no "return" in the Section 5 sense; he was validly appointed by his governor to fill a vacancy pursuant to the Seventeenth Amendment and Illinois law.  Moreover, this violates the spirit of Article I, Section 5, and Powell, which together stand for a narrow reading of the Senate's authority to judge and block duly elected or appointed senators-to-be.

This is also an appalling disregard of the Seventeenth Amendment--which allows state legislatures to authorize their governors to fill Senate vacancies--and state sovereignty.  The Illinois legislature validly authorized Governor Blagojevich to appoint a replacement for President-Elect Obama in the Senate pursuant to the Seventeenth Amendment.  It could have revoked that authorization and provided for a general election.  It didn't.  Neither the Seventeenth Amendment nor Illinois law require the secretary of state's signature to validate the appointment.  (Illinois law does impose a duty on the secretary of state to sign gubernatorial appointments, but failure to satisfy this duty cannot invalidate an otherwise lawful gubernatorial appointment.  It just means that Secretary of State White is violating his legal duty.)  By requiring the secretary of state's signature, Rule II violates the language and spirit of the Seventeenth Amendment and encroaches on the state's ability to fill a vacancy in one of its Senate seats.

In the same article, the Times suggests that Senate Democrats are softening their opposition and may be open to negotiation.  Let's hope the parties can work this out in a manner consistent with the Constitution.



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The "other" Times had an editorial by Chemerinsky yesterday that is likewise in favor of the constitutional grounds of the appointment: http://www.latimes.com/news/opinion/la-oe-chemerinsky6-2009jan06,0,2315785.story

[Incidentally, it's nice to have Chemerinsky back in California!]

Posted by: Patrick S. O'Donnell | Jan 7, 2009 12:32:54 PM

The Illinois Supreme Court filed a fascinating opinion today concerning the Burris dispute -- http://www.state.il.us/court/OPINIONS/SupremeCourt/2009/January/107816.pdf

Posted by: J.D. Mekeel | Jan 10, 2009 9:38:50 AM

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