Comments on: Burris May Get Cut Off At The Pass http://themoderatevoice.com/25326/burris-may-get-cut-off-at-the-pass/ An Internet hub with domestic and international news, analysis, original reporting, and popular features from the left, center, indies, centrists, moderates, and right Mon, 28 May 2012 23:08:15 +0000 hourly 1 http://wordpress.org/?v=3.1.2 By: SimonDodd http://themoderatevoice.com/25326/burris-may-get-cut-off-at-the-pass/comment-page-1/#comment-168225 SimonDodd Wed, 31 Dec 2008 04:41:48 +0000 http://themoderatevoice.com/25326/burris-may-get-cut-off-at-the-pass/#comment-168225 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). <br><br>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 <i>have</i> 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? 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?

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