Friday, January 2, 2009

Blagojovich Appointment of Burris to Senate

The appointment by Illinois governor Rod Blagojovich of Roland Burris to the U.S. Senate raises a number of interesting constitutional questions.

While Blagojovich seems remarkably out-of-touch with what most people would consider to be appropriate ethical behavior in politics, and his action in appointing Burris is surprising in its hubris and seeming defiance of his constituents, the citizens of Illinois (not to mention to Americans everywhere else), the appointment as it currently stands probably should be respected and acknowledged as legitimate by the Senate.

In stating they will refuse to seat Burris, Harry Reid and other Democrats in the Senate risk overstepping their appropriate role in our federal/state system. Granted, Art. I sec. 5[1]the Constitution provides that "Each House shall be the Judge of the ... Qualifications of its own Members," so it would seem the Senate could disqualify Burris if it sees fit. That said, the Constitution also provides in Article I, Sec. 3[3] that the only requirements for a person to be a member of the Senate are to be 30 years old, nine years a citizen of the U.S., and a citizen of the state for which s/he is selected to respresent. And when these two provisions are juxtaposed, the second seems to prevail - at least according to the Supreme Court on the facts of the 1969 Powell v. McCormack case. There, the House of Representatives tried to refuse to seat Adam Clayton Powell for a new Term in light of evidence he'd misappropriated funds during the prior Congress, but the Supreme Court said the ONLY basis by which the House could refuse to seat him was if he failed to meet the minimum age and residency requirements specified in the Constitution.

The Powell holding emphasizes the fact that the States have the right to designate whom they will for the Senate. And here, Illinois law allows a sitting governor to appoint a replacement for a vacant Senate seat; and Blago (arrested, yes, but still not impeached nor convicted) is still the duly-elected sitting governor of the State.

If anything, the power to resist Blago's brazen move is with the Illinois legislature - it should have moved faster to remove Blago's authority through impeachment or some other mechanism. It has been several weeks now since we've learned of his pay-to-play modus operandi, and the legislature could have acted more quickly to prevent this (alleged) crook from exercising his authority. There may still be some way for the Illinois legislature to trump Blago's appointment - e.g., apparently (disclaimer: hearsay - I've not researched this) there's a state law provision essentially recommending that the governor's appointment be certified by the Illinois Secretary of State, so perhaps the legislature could add teeth to that provision by requiring the Secretary's certification in order for a gubernatorial appointment to be effective.

The point is, however, that the question of whether this or some other patch could work is a question worthy of some consideration by the good folks of Illinois, probably not the U.S. Senate - as much as the outrageous behavior of Rod Blagojovich might tempt it to do so.