Senate Violates the Constitution in Turning Away Roland Burris

Rod Blagojevich may be a little bit crazy. If so, he's crazy like a fox. In appointing former Illinois Attorney General Roland Burris to fill Barack Obama's vacated Senate seat, it looks like he's outsmarted US Attorney Patrick Fitzgerald, the Illinois State Legislature, and Senate Majority Leader Harry Reid. In turning away the Senate's only Constitutionally-designated African American Senator in front of a rainy Capitol, Harry Reid and his Senate colleagues violated the Constitution. As much as Reid and his allies would like this all to just go away, it is unlikely to be the end of the story.

Whatever the political complications and potential embarrassment for Democrats, from a legal and Constitutional perspective, the question of whether or not Burris should be allowed to take his seat as the Junior Senator from Illinois is not especially difficult. He should.

There are three basic parts to the Constitutional case for seating Burris:

1. Does Governor Blagojevich have the legal authority to appoint a successor to fill the open Senate seat? Yes. Blagojevich is the legally elected Governor of Illinois and has not been impeached or otherwise removed from office. Pursuant to the 17th Amendment to the US Constitution, the legislature of a State may empower the executive of the State to fill a US Senate vacancy until the next election. Under Illinois law, the sitting Governor has the legal right, perhaps even the obligation, to fill the open Senate seat, until the next election in 2010.

2. Does Burris meet the legal qualification for holding the Senate seat? Yes. The standing qualifications under the Constitution for serving as a Senator is that a person be at least thirty years old, have been a citizen for at least nine years, and be an inhabitant of the State from which s/he has been elected. Moreover, while Burris might not be my own first choice if I were an Illinois voter (personally, I like Rep. Jan Schakowky) Burris's resume makes him more than qualified. He was the first African American elected to statewide office in Illinois, serving as state Comptroller from 1979-1991 and as Attorney General from 1991-1995. No one has accused Burris of being corrupt, having broken the law, or offering Blagojevich anything illegal in exchange for the seat.

3. Despite the fact that Burris was appointed by the legally sitting Governor of Illinois and fulfills the Constitutional requirements for the office, can the Senate nonetheless refuse to seat him? No. Article I, Section 5 of the Constitution states that each House of Congress shall be the Judge of the Qualifications of its members. However, in the 1969 case of Powell v. McCormack, the U.S. Supreme held that "in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution" (i.e. that the member be at least 30 years old, a citizen for at least 9 years, and an inhabitant of the State which elected him or her). The case concerned Harlem Congressman Adam Clayton Powell, the first African American elected to Congress from New York, who served from 1945-1971. Powell flaunted the informal Congressional rules in effect when he first took office against blacks eating in the "whites only" House Restaurant (angering Southern Democrats); endorsed President Eisenhower's reelection in 1956 as a protest again the Democrats' weak civil rights platform (angering many other Democrats); and was instrumental in passing minimum wage legislation, civil rights legislation, and much of the Great Society legislation (angering many conservatives). The colorful and controversial Powell was also accused of corruption, and in 1967 the House refused to seat him after alleging that Powell misappropriated Committee funds for personal use. The people of Harlem overwhelmingly reelected him anyway. The Supreme Court ultimately found that Congress was wrong for refusing to seat Powell and Congress's only criteria in judging the Qualifications of its members were those three enumerated in the Constitution. The Supreme Court wisely realized that giving Congress the power to overrule the will the electors would open up a dangerous can of worms in which Congress could refuse to seat lawfully chosen members because they didn't like them, didn't like the people who chose them, didn't like their race, gender or sexual orientation, or didn't like their politics.

The Powell case makes it pretty clear that the Senate does not have the right to refuse to seat Roland Burris regardless of whether or not they like Blago and his actions. (OK, lawyers and law professors can make an argument over almost anything and several have, arguing, for example that Burris's case is different from Powell's because Powell was elected and Burris was appointed. But given that the 17th Amendment grants states the power to give the Governor the authority to make an interim Senate appointment, this seems to be a distinction without a difference.)

If Blago is guilty of the charges being brought against him by Fitzgerald (and remember, despite Blago's crude language, under the Constitution Blago must be presumed innocent unless found guilty by a jury of his peers), then he has violated the law and may end up in prison. But if Reid and the Senate refuse to seat Burris, they may be violating the law and the Constitution. In both instances, the issue at stake is the rule of law. However distasteful they may find it, Reid and the Senate should uphold the rule of law and seat Burris.

Moreover, given the serious pressing issues which confront Congress, including quickly passing a stimulus package and confirming President-elect Obama's cabinet and other high-level appointments, an extended legislative or legal battle over Burris is in the interest neither of Democrats nor the nation.

Burris is likely to be a reliable Democratic vote in the Senate (more reliable than Joe Lieberman and more qualified than Caroline Kennedy) and should he choose to run again in 2010, the people of Illinois will get to decide if they want to send him back to the Senate, first in a Democratic primary, and in the unlikely event that he wins the primary, in the general election.

Harry Reid and his Senate colleagues may not like being outfoxed by Blago. But the least bad choice is to fulfill their Constitutional obligation to seat Burris and get on with the business of solving the problems of the country.

Comments

[Jeff Norman - Huffpost Blogger]

Miles Mogulescu wrote: “Under Illinois law, the sitting Governor has the legal right, perhaps even the obligation, to fill the open Senate seat, until the next election in 2010.”

Miles, why do you have any doubt that the governor is obligated? What’s the argument that he’s not?

[JustMyWords]

OK, I agree with the substance of the story, but I have to raise a minor quibble.

"In turning away the Senate's only Constituti­onally-des­ignated African American Senator...."

What in the world does that mean? There are unConstitutionally designated senators? The Constitution designates Burris as the only African American? There are other black senators but they're unconstitutional?

[Beca]

JustMyWords: you misunderstood. The author inserted the word "African American" in that sentence only to make another significant point--that Burris is African American, and at this point would be the only African American U.S. Senator. Making the refusal to seat Burris is not only against the Constitution, but it raises the issue of race.
Barack Obama was the only African American U.S. Senator, so I believe that the author was using the symbolism of his vacated seat to make the point, because Burris is also African American.
And NO, there are no other African American U.S. Senators. There are African American U.S. Congresspeople though.

[DiscoDave]

Has everyone forgotten that the IL Secretary of State has not certified the Burris appointment by G-Rod either? I would think this makes the appointment invalid. No need for Mr Burris to travel to Washington to be told so.

[Beca]

That still does not take away the Governor's authority to appoint Burris to the Senate seat. The "certification" only certifies that the appointee meets the Constitutional requirements to be a U.S. Senator. In this case, the Il Secretary of State has refused to sign the certification not because Burris does not meet the Constitutional requirements, but because of politics and because he does not like the Governor. Legally it really does not hold much water.

[Teamster]

No reason the appointment should not be filled .

The (peoples ) seat can not be vacant. minus a vote for the people

Reason the (accused officer) of the state) Is yet the legal authority to appoint.

In line with the state constitution.

U S Constitution is available for every one.

Now for the irrate there is no color . The constitution preamble states this very clearly

[WilliamL]

The inability of this writer and some Dems to recognize that this appointment is not only tainted but stained is pathetic.

The fact that this appointment lacks the sense to recognize this is pathetic as well. The business with him showing up and not being seated-knowing this wd. happen-is sad.

The more this happens, the easier it is to see this administration being a one termer.

[JustMyWords]

But being tainted does not mean the appointment is illegal.

The whole situation is a disaster, and it comes across as a giant game of political chicken. But at this point, Blago is still the governor of Illinois, and the law gives him the authority to make the appointment.

[Beca]

WilliamL, you are confusing politics with law. Yes, politically, this appointment has many problems because of the cloud over the Governor. However, legally, there is nothing wrong with this appointment. You also fail to recognize that under the law of this country, the accused are still deemed inocent until proven guilty by a court of law. Like it or not the Governor is still legally the Governor and has not been convicted of anything--so under the law, he is inocent until proven guilty! Sure, this governor seems to be a very shady and creepy person and persoally he gives me the willies, however, in order for our country to function fairly and appropiately we must follow and respect the letter of the law and our Constitution. You don't like the law, then get our law makers to change it, until them, we must all respect the law of the land, not doing so only disrespects this country.

[DBJay]

It's politics, Miles. Burris will be seated, Reid will breathe a sigh of relief, and Dems can say we're not in bed with Blogo.

[carnelld]

You are correct that the Senate nor the House of Representative can choose to arbrtrarily decide their membership.
There are some basic fundamental questions that should be answered. If Reid and the Democratic Senate leadership can deny a Senator appointed by a Governor, to determine his fitness, what will happen when the Republicans get a majority. They play hard ball. They could hold up the credentialing process on any Senator (appointed or elected) to determine the fitness of the Senator. They might send the Senator's situation to the Rules Committe for further study. Just the idea of Saxby Chambliss(Georgia), John Mcain, Richard Shelby(Alabama), et al, making the decisions as to who is suitable for the Senate is a disturbing proposition.
This is a slippery slope. Regardless of what happens, I think the courts should clarify this situation before the Republicans get back in the majority. Clearly, leadership is needed. Fienstein is correct. Maybe it is better that all the Democrats don't just go along to get along. Obama made a mistake agreeing with the Senate leadership. He is attempting to be a team player, but look at his team. With Reid, Durbin, Emanuelle, Barney Frank(House of Representatives), etc who will give good sound advice?

[eka15]

Akil Reed Amar, a Yale Law professor and one of the most brilliant Constitutional scholars of our time, says differently:

http://www.slate.com/id/2207754/

I don't think you can top that argument.

[ThinkCreeps]

If this is a violation of the constitution, then maybe the senate's just trying to show shrubbie-pops how much they respect his selfless service. Imitation is the sincerest form of flattery.

[msblkwidow]

There is a point that has been nagging me since the inception of this mess (Blogajevich and Burris) and it has to do with a young Congressman by the name of Jesse Jackson Jr. If I remember correctly, Rep. Jesse Jackson Jr.'s connection to Blogajevich was in question. Early on, it was reported in the news that Jackson was an "Informer"...an informant for the Feds...against corrupt government in Illinois. Now, I don't like the label "Informant"; but that just me. Now, Rep. Jackson spoke up first about his conversation with Bloga, then the story of his conversations/role with Blogajevich was made clearer. He was called, on Nationwide television, an Informant.

I feel sorry for the young Rep. Jackson because he apparently was trying to clean up Illinois' government. Blogajevich learned of Jackon's informant role probably the same time as everybody else. If Blogajevich had Jackson on his list of potential appointees, I'm sure he scratched Jackson's name immediately.

This is the only problem that I have with the appointment by Blagojevich. Rep. Jackson clearly stated that he wanted the Senate seat. He met with Blagajevich. The news hit... "Jackson is Illinois' Informant". I feel Jackson was knocked out of the running for that Senate seat.
Think about it. Did Blagojevich really have the right to chose -especially after hearing the Jackson report.

[diogenes1967]

This is an interesting question since Jackson could have won that seat outright in 2010, IMO.

The problem is there was also a fundraiser or a dinner or something with Jackson's brother, Blago, and members of the Indian buisness community the week before Blago's arrest, with Jackson meeting with Blago on Monday then being arrested the next day. It seems that meeting, more than anything, hurried Fitz to arrest Blago.

This may have a grain of truth to it. Danny Davis was also on Reid's list and he was offered the job. But certainly given the fact that Jackson's (or, much more likely a surrogate of Jr.) was already planning the fundraiser, the concern was that a fundraiser either had gone down or was about too.

[thanos mom]

Just laughed me wee arse off watching The Colbert Report (or Colbert and Colmes today) talking about the Burris taint...

[thanos mom]

I really should have paid more attention in my government classes... I defer to better minds here. But do have to say I agree with others stating that regardless of whether Burris is an effective/­honest/eth­ical politician or not the way he came to be in that seat will likely taint memory of his service.

[tony7914]

What's sad is regardless of anything Mr. Burris says or does, whether he's a good politician or not there will be a black cloud over his head because of Illinois corrupt governors desire to sell that seat. The senate sees this, Obama sees this, and so do many on the right. The wisest thing the governor could have done for the people of Illinois was to defer this decision until he cleared his name. Naming someone to fill that seat while he's being accused of trying to sell that seat was the stupidest thing he could have done and is a disservice to the people of Illinois.

On the other hand I'm sure many on the right are enjoying watching the Democrats fight among themselves. I sure hope this isn't what "Change" is going to be all about, looks allot more like business as usual.

[CAPTAINSKIPPY]

Must be nice to have such absolute power, for the Senators to dictate, in lieu of the governor vested with this power, appointment of fellow Senators. But what positive things have they been doing with these powers ---- for the last 8 years?

[THINKB4USPEAK]

Violating the Constitution, huh? Now, where have heard THAT for the past eight years?