Senate Violates the Constitution in Turning Away Roland Burris

02/06/2009 05:12 am ET | Updated May 25, 2011
  • Miles Mogulescu Entertainment attorney, producer, writer and political activist

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.