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Posted by on Dec 30, 2008 in At TMV, Politics | 6 comments

Senate Posturing vs. State Sovereignty

First of all, let me apologize in advance for any misapplication of constitutional law that I may make over the next few paragraphs. I am not a constitutional scholar and cannot pretend to be one, however, I am somewhat familiar with the document… at least familiar enough to write a blog entry.

Senate Majority Leader Harry Reid (D-NV) stated that Blagojevich’s pick of Roland Burris “unacceptable” and that Burris would not be seated by the Democratic caucus. While that may be a political deterrent to the State of Illinois to approve the nomination for Burris to be seated, it does not mean that Burris will not be a member of the United States Senate.

The 17th Amendment states “When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” What this means is that it is up to the state to fill the open seat; it is NOT at the whim or the pleasure of the members of the United States Senate.

Constitutionally, it does not matter what Harry Reid or the other 49 members of the Democratic Caucus want. I researched the Senate Rules for appointment to the body and it does not stipulate that the Senate can deny the right of the state to seat its own chosen representative. The Great Compromise of 1787 was the agreement that allowed the state legislative body (or Governor) to appoint the members of the upper house of the Congress.

I may be wrong (and correct me if I am) but Reid has very little wiggle room here. He can choose not to seat Burris in the Democratic Caucus; that may mean he might be listed as an Independent like Joe Lieberman and Bernie Sanders. With Democrats being close to sixty votes with the possible Al Franken victory in Minnesota, and the fact that that there is currently no African American in the United States Senate, state sovereignty may overrule Senate posturing by the middle of January.

This should be an interesting confrontation between states’ rights and the power vested by the states to the national legislative body… Supreme Court here we come!

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Copyright 2008 The Moderate Voice
  • DdW

    Thought-provoking post, Tony.

    Just one comment:

    You mention that “The 17th Amendment states ‘When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

    And infer: “What this means is that it is up to the state to fill the open seat; it is NOT at the whim or the pleasure of the members of the United States Senate.”

    I just want to quote Section 8 of the U.S. Constitiution: “The Congress shall have power to …declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water…”

    What this means is that it is up to Congress to declare war and it is NOT at the whim or the pleasure of the President

    I know this is a very controversial “constitutional” issue, and I am familiar with the duties and responsibilities given by the Constitution to the commander in chief, and his responsibility to defend the nation, and the War Powers Resolution of 1973 , and how little attention both “sides” pay to both the Constitution and to the “Act,” and how often both have been violated..

    My point is that if the Constitution can be (mis)interpreted on such important issues as war and peace, some will certainly try to (mis) interpret it in the case of the Blago Senate nomination.

    Anyway, good post and point (Have I opened up a can of worms?).

  • StockBoySF

    I’m no constitutional lawyer either, but I agree with your analysis. I think the governor can appoint the US Senator and Reid can do nothing about it. Reid is all about posturing anyway.

    Obama, on the other hand, IS a constitutional lawyer and respects states’ rights more than most republicans (who only claim a limited federal government unless infringing upon states’ rights would help that person politically). It will be interesting to see what he does, particualry since it is his old seat…. But I think Obama will just still clear and say it’s not his place to intervene. And he would be right in saying that.

    This is a Democratic mess and anything Obama does will only harm him. Best to stay out of it.

  • It appears Reid agrees with you. He didn’t say he would not allow him as a Senator. He said “will not be seated by the Democratic Caucus.” (from your link)

  • StockBoySF

    Sigh… I see that Obama has expressed disappointment with Blagojevich’s appointment… More to come…. 🙂

  • sh0ter

    Well if Reid had enough political clout he could seat him, and then vote to expel him. The courts have previously ruled that the Senate can’t add any additional requirements for being a member of congress, ie not admitting the appointee because he was pick by the disgraced governor, however it is not unconstitutional to remove said member after they have been seated.

    Its safe to wager that Reid knows this and this is not so much posturing, but a warning shot.

  • Dave_Schuler

    Historically, Article I, Section 5 of the Constitution has been construed as granting to the Senate the power to limit its own membership.

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