Sunday, January 4, 2009

Why the Senate Cannot Block Burris

The constitutional arguments have circulated (and recirculated) now since Governor Blagojevich appointed Roland Burris to fill President-Elect Obama's Illinois Senate seat.  (I've posted here and here, with links to the best.)  At the end of the day, the strongest constitutional argument for Senate authority to block Burris is simply not strong enough, and the Senate therefore lacks authority to block Burris.  While the Senate may nevertheless be able to do an end-run around its constitutional restraints, there are good prudential reasons to avoid this.

The strongest argument for Senate authority to block Burris goes something like this:

1.  The Senate has authority under Article I, Section 5 to "Judge . . . the Elections, Returns and Qualifications of its own Members . . . ."

2.  Admittedly, the Senate can't judge Burris unqualified, because he plainly meets the age, residency, and citizenship qualifications of Article I, Section 3.  And the Senate can't add requirements or otherwise judge Burris to be unqualified, so long as he meets these basic constitutional qualifications.  See Powell v. McCormack.

3.  But the Senate may judge Burris's "election" to be faulty.  This argument requires reading Section 5's "elections" to include an appointment under the 17th Amendment and Illinois law authorizing the governor to fill a Senate vacancy.

4.  And the Senate may judge Burris's "return"--his actual appointment document--to be faulty.  This argument requires a flawed process, or a technically flawed return.  As to the latter, the best argument here is that the appointment may lack a signature from Secretary of State Jesse White.

(Just this morning Senate Majority Leader Harry Reid outlined something like this--in broader terms--for David Gregory on Meet the Press.)

Here are the problems:

Point 2. is correct, and the Senate lacks authority to block Burris based on his lack of qualifications.

As to Point 3., there is no indication that Burris's "election" was flawed in any way, even if we understand Section 5's "elections" to include an appointment by way of authority under the 17th Amendment and Illinois law--not at all an obvious point, given the plain language of Section 5 and of the 17th Amendment.  (Here's just one problem:  The 17th Amendment uses "temporary appointment" and "election" as two entirely distinct methods of gaining office, suggesting that a "temporary appointment" under the 17th Amendment is not an "election" either for 17th Amendment of Section 5 purposes.)  But if the Senate goes ahead and judges that this "election" was flawed, there seems to be no limit on the Senate's authority to judge any even marginally suspicious election flawed (by the judgment of a mere majority of senators).  This is very dangerous precedent.

As to Point 4., again there's no indication that the return is flawed.  The Secretary of State's signature is merely ceremonial--Illinois law, 10 ILCS 5/25-8, requires only that the governor make the appointment, not that the Secretary of State sign it--and any Senate rule that requires a Secretary of State's signature cannot override the constitutional definitions on Senate authority under Article I, Section 5 and the state legislature's authority under the 17th Amendment.  (The Illinois state legislature had plenty of time to change this--and to require a general election instead of a gubernatorial appointment to fill a vacancy--but it didn't.)

And to the extent that Powell v. McCormack is relevant, Points 3. and 4. both undermine its spirit, reading Congress's authority under Article I, Section 5 quite narrowly.

The Senate, as a body of limited, enumerated powers, simply does not have the constitutional authority to block Burris.

But that doesn't mean that the Senate can't do an end-run around Article I, Section 5.  It could, for example, delay seating Burris by holding hearings on his "election" or "return" until Blagojevich is impeached.  But this undermines Article I, Section 5, and the 17th Amendment, and the Senate should avoid this.  The Chicago Tribune ran a thoughtful editorial--even if not entirely accurate on the constitutional law--arguing against this kind of monkey-business. 

Or the Senate could seat Burris and then expel him by a 2/3 vote under Article I, Section 5, clause 2.  (Or it could anticipatorily vote to expel him by passing a resolution by 2/3 warning Blagojevich that Burris will be expelled if he doesn't back down.)  This is clearly within the Senate's authority, but may be unviable or unpalatable.

Whatever the Senate does, any legal challenge may well be a political question, and the courts may punt back to the political branches.  This doesn't make the Senate's interpretation of its constitutional authority correct, it just means that the Senate is the body that gets to decide.


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