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Burris May Get Cut Off At The Pass
Fellow blogger Tony Campbell has already posted on the issues the Senate might face in trying to block the seating of Senate appointee Burris. However a new wrinkle has entered the fray as Illinois Secretary of State Jesse White has indicated that he may refuse to certify the appointment, which is required by Senate Rules.
If White does refuse to certify the appointment, then the Senate could reject the appointment with ease but Governor Soprano could then sue to force White to certify (which could compel AG Madigan to decide which side to take).
Needless to say, it could be interesting.
One Response to “Burris May Get Cut Off At The Pass”
Patrick, it's not entirely clear to me that White's refusal to certify can create an authority by the Senate to reject the nomination. Where would that power come from? White's inclusion in the loop doesn't create any additional authority from Art. 1 § 5 (this still isn't an election, and even if White's certification could be treated as a qualification for section 5's purposes, which I doubt, it would seem to run aground on Powell, Thornton, or both).
Moreover, I'm not even entirely sure that Illinois can, in effect, give the Secretary of State a veto over the appointment. The Seventeenth Amendment is the source of the legislature's authority to empower the governor to make the appointment, and it also limits that power. The state legislature doesn't have to give the Governor that authority, and a state law attempting to go around those limits would run aground on the supremacy clause. So the question in my mind is this: consistent with the limited grant of power in the Seventeenth Amendment, the Illinois legislature couldn't have given itself authority to make a temporary appointment, and we know that it couldn't have given that authority to any executive branch officer other than the Governor. That being the case, is a provision of state law that has the effect of giving an executive branch actor other than the Governor a veto over the Governor's appointment power ultra vires, and if so, is it severable?