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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.