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Posted by on Dec 31, 2008 in Politics | 6 comments

Senator Burris: Much Ado About Little

Both here at TMV and in other locations across the intertubes I’ve been seeing all sorts of protestations, rending of clothing and gnashing of teeth regarding Rod Blagojevich’s decision to appoint Roland Burris to the now-vacant Senate seat once occupied by President Elect Obama, who has himself termed the choice unacceptable. Harry Reid and the Senate Democrats are claiming that they won’t seat Mr. Burris if he is presented. State politicos in Illinois are crying foul, with the Secretary of State claiming he can block the appointment by failing to certify it. But, in the end, do any of these threats and complaints amount to anything?

It didn’t sound like it to me, so I was glad to see that Huffington Post checked in with a legal scholar to examine the question. Their conclusion sounded pretty much in-line with what I was thinking, which dates back to a previous court decision limiting how much freedom the Senate has in refusing to seat its members.

My reading of Powell v. McCormack, 395 U.S. 486, is that the Senate probably can NOT constitutionally block Burris from being seated,” writes the constitutional law professor. “Art. I, sec. 5 gives each House the power to judge the qualifications of its own members. Powell holds (inter alia) that the qualifications to be judged are those stated in the Constitution (see Art. I, sec. 3, cl. 3 and the 17th Amendment).”

Burris has met all of those qualifications: he’s over 30, been a US citizen for 9 years, he’s an Illinois resident; he was appointed by the executive authority of the state to fill a vacancy, pursuant to Illinois law.”

To the best of my knowledge, Roland Burris stands accused of no crimes and, as noted in the paragraph above, meets the few requirements which exist for taking a seat in the upper chamber. He was appointed in accordance with Illinois election law, which has still not been changed, by a seated Governor who has still not been convicted of any crime nor removed from office by impeachment.

And what of the Secretary of State in the Land of Lincoln. Could Jesse White really stop the appointment by simply refusing to certify the act?

Secretary of State Jesse White’s office has said it will not certify the Burris appointment. But, here again, the law may not be on their side. State charter holds that it is the “duty” of the Secretary of State:

1. To countersign and affix the seal of state to all commissions required by law to be issued by the Governor.

2. To make a register of all appointments by the Governor, specifying the person appointed, the office conferred, the date of the appointment, the date when bond or oath is taken and the date filed. If Senate confirmation is required, the date of the confirmation shall be included in the register.

Asked to assess the law in this case, legal scholars yet again say Burris is sitting in an enviable position.

Were we to somehow accept Secretary White’s premise, then every Governor in the country is effectively-hamstrung, and the office of Secretary of State becomes the most important one in every state. That would basically give one person the power to veto any action taken by the Governor he or she wished, even the signing of new legislation into law. The idea is preposterous on its face. Mr. White has no such power and refusing to certify the appointment should do nothing but open him up to charges that he is failing to perform the duties of his office.

You may be opposed to it. You may think that the “taint” of Blagojevich makes such an appointment ridiculous. But like it or not, as I read the rules of the road, the only person who can stop Roland Burris from being seated in the United States Senate is Roland Burris, should he suddenly change his mind and decline the appointment. And having observed his first press conference this week, that doesn’t seem very likely.

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  • StockBoySF

    What’s the US Senate’s (at least the Dems) motivation in blocking Blagojevich’s appointment? Do the Senate Dems have someone else in mind, do they simply want to make sure that whoever is appointed is not tainted by the scandal (which might open up an avenue of attack from Republicans…. though they can’t control their own members’ actions with regards to resigning over scandals, even after being convicted of felony charges) or is there some other reason?

  • I get to the same place as you do on White via a slightly different route. White’s argument is stuck between the proverbial rock and hard place.

    On the one hand, he may not have been given any discretion to refuse to sign in the first place. If state law (including state Constitutional law) merely assigns the SecState a ministerial duty of signing, sealing and delivering the commission, he has no more right to refuse to do so than Mr. Madison did to refuse to deliver Mr. Marbury’s commission, in which case White would violate Illinois law by refusing to sign.

    On the other hand, if state law does give the SecState discretion, that state law is problematic. The legislature’s authority to give the Governor temporary appointment power arises from the 17th Amendment, and is limited by the same. The legislature cannot give more than it has been delegated the power to give, or authorize someone who it was not empowered to authorize. And what was it authorized to do? It was authorized to “empower the executive [of a state] to make temporary appointments.” Quite obviously, the legislature of Illinois could not authorize itself to make a temporary appointment, and it couldn’t authorize the Chief Justice of Illinois to make a temporary appointment. Assuming that the 17th Amendment’s reference to “the executive” means the chief executive, i.e. the Governor, if Illinois has functionally given the SecState authority to veto the Governor’s choice, it has given something that it had no power to give.

  • Actually Burris is a very smart, safe pick. At 71, he will not run for a 6 year term. He is a seat warmer – plain and simple. With a relatively benign seat warmer in place, both parties can groom their best pick (in the case of the ILGOP probably bring in another ringer from out of state….) and start the 2010 campaign right away.


  • LadyLogician, what’s your basis for saying that “[a]t 71, he will not run for a 6 year term”? Senators tend to linger past their sell-by date. To pick only some obvious low hanging fruit, Jesse Helms sought reelection in 1996 aged 75; Dan Akaka was 82 when reelected in 2006; Frank Laughtenberg and Ted Stevens ran for reelection this year aged 84 and 85 respectively; Robert Byrd ran for reelection in 2006 aged 89; and I think Strom Thurmond was 94 when he last ran for reelection.

    • Simon – Burris has never really been that ambitious. He sat in the AG’s office for 14 years before he ever decided to think about running for governor. Plus as elrod said -Burris has no base of power. Part of the reason why he is a multiple loser for governor is because of his long running feud with the Daley clan! If you don’t have a base in Chicago, you might as well hang it up!


  • elrod

    All of your examples were longtime Senators. Burris is a multiple loser candidate for statewide office. He might run again in 2010 but he has no real base of power.

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