In one of the most dramatic moments in Senate history, the Democrats refused to let Roland Burris enter the Senate chamber today. Democrats do not want to recognize an appointment from Illinois Gov. Rod Blagojevich, who is accused of trying to sell the seat to replace President-elect Barack Obama. Burris attempted to be sworn in on the first day of the 111th Congress, but was told by the Secretary of the Senate that his credentials “were not in order.”
Nancy Erickson, the Senate secretary, initially cited the absence of the signature of Illinois Secretary of State Jesse White as the reason for rejecting the appointment. Burris is trying to get the Illinois Supreme Court to order White to sign the form. White has no authority to refuse his signature and is claiming the right to unilaterally block an appointment because he simply does not like or is suspicious of the appointing governor. No one has claimed that Burris bought this seat and indeed he would have been on the list of likely candidates for any governor.
It is clear that White’s actions are not true reason for extraordinary action. Senate Majority Leader Harry Reid and others stated their intention to block the appointment based on the governor’s scandal. Indeed, Reid said that, if his credentials are valid, the Senate would “proceed in a manner that is respectful to Mr. Burris, while ensuring that there is not a cloud of doubt over the appointment.”
To make matters worse, there is a rumor that Burris is being asked to guarantee that, if he is sworn in, he will not run in 2010. Given the fact that the democrats have no legal basis to deny him this appointment, such a proposal would magnify the gross abuse of power.
For Democrats who have complained about George Bush’s abusive use of authority, this is a terrible way to begin their control of both the Congress and the White House. Just as the Bush Administration argued that the President can torture because he says he can, the Democrats are claiming the right to bar any member because they can. It would create a precedent that they will regret and only fuels GOP efforts to block Al Franken. At least the GOP can cite an election controversy, the Democrats have no legal claim against this appointment.
For the full story, click here.
Mespo:
Erwin Chemerinsky is repeating the mantra but avoiding the issue about the scope of the Senate’s discretion here. He quite properly says, “But the Supreme Court has been clear that these words do not bestow on the House or the Senate unfettered discretion in deciding whom to seat.” The question though is what discretion does the Constitution bestow.”
The Constitution grants no discretion. And rightly so, because, as the Court cited in Powell, such discretion would be:
“an improper & dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect. . . . It was a power also, which might be made subservient to the views of one faction agst. another. Qualifications founded on artificial distinctions may be devised, by the stronger in order to keep out partizans of [a weaker] faction.”
http://press-pubs.uchicago.edu/founders/documents/a1_3_3s1.html
“If the Supremacy Clause (Article VI, Clause 2) means anything, the Senate must have the discretion to apply its own standards to state determinations of eligibility for its membership based on the Constitutional principles we have seen eloquently articulated on this thread by the other contributors.”
Article VI may not be used to increase or expand the powers specifically delegated within Articles I, II, or III. Why? Because Article V says so:
“In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.” See REID v. COVERT, 354 U.S. 1 (1957)
mespo727272 1, January 7, 2009 at 3:16 pm
Mike Appleton:
I think you forgot “(d)” which is the Democrats will have shown themselves to have acted in accord with the public’s wishes according to the recent polls and will have been seen as trying to stop corruption. It’s not bad to have fought for the right and lost; it’s bad to not have fought at all.
—–
Well said.
I would have preferred to see Burris truly ‘lead’ in part by getting out of his own way. He reminds me of Nixon when he says
‘I AM’ the junior Senator from Illinois”.
It would have been fun to see Blago try to appoint himself, but I’m enjoying watching Burris shoot himself in the foot, too. The Senate- not so much. There’s NO haggling over Senate seats, but I doubt Reid need be concerned about Burris in 2010.
Vince, I predict a lot of states will be reconsidering their interim appointment rules.
Erwin Chemerinsky is repeating the mantra but avoiding the issue about the scope of the Senate’s discretion here. He quite properly says, “But the Supreme Court has been clear that these words do not bestow on the House or the Senate unfettered discretion in deciding whom to seat.” The question though is what discretion does the Constitution bestow. With respect to the qualification component, the rule in Powell’s case still carries the day, my thoughts about its correctness notwithstanding.
Chemerinsky is a little more opaque when he addresses the latter two terms “elections,” and “returns.” Here the good dean relies upon the 17th Amendment to support the notion that the Senate may only look to the technical aspects of State law to determine if a selection is valid. I believe this position to be an unconstitutional delegation of the Senate’s power to “judge” elections and returns. The Body is thus reduced to rubber stamping state law with no discretion. If the Supremacy Clause (Article VI, Clause 2) means anything, the Senate must have the discretion to apply its own standards to state determinations of eligibility for its membership based on the Constitutional principles we have seen eloquently articulated on this thread by the other contributors.
For those in the “seat ’em now” camp, I ask that you consider this case and assume we learned about the Blogo’s tapes AFTER he had made the appointment. Would we then be so anxious to seat the man we rightly suspected of paying a bribe? Would we move heaven and earth to block that circumstance?
This has been a very cordial discussion, and I have learned a lot. Thank you, everyone.
On a technical point, the learned Dean Chemerinsky may have nodded for just a moment. He wrote QUOTE The problem here is that Burris unquestionably was lawfully selected. According to the 17th Amendment, “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.” Illinois law gives this power to the state governor, and that is Blagojevich until he is impeached and found guilty. UNQUOTE
Actually, Blago did not order an election under that clause. He acted under the 17th Amendment’s Proviso 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. I think some states have done away with this and mandated elections. I favor that. Appointments by governors are inherently undemocratic and obsolete.
The reports now say that Burris may have to do a three-step. One, Burris must get the signature and seal on his credentials, voluntarily or by court order. Everyone seems to want this case expedited. Two, Burris must testify Thursday under oath and give an affidavit to the Illinois impeachment committee. That gets Burris to tell his side of the story, under penalty of perjury. Three, the Senate Rules Committee, which has jurisdiction of all election and appointment disputes, must review the matter and make a recommendation to the full Senate. (Btw, not all congressional investigations are bad. Remember the Senate Watergate Committee. I remember the Army-McCarthy hearings that brought Joe down.) The full Senate has the final say – under the Constitution.
Any lawsuit by Judicial Watch at this point would be pretty premature, and a probable bid for headlines. Do they have standing? Is the matter ripe for decision before the Senate acts? Is there a question of justiciability, since the matter may have been committed by constitutional text to a co-equal branch of government?
If Burris plays ball, he may well be seated. Al Franken seems to have had the good sense stay back home for a while, maybe until all the state court rulings are final, or at least until the Senate gives him a signal. Burris should have waited for the Illinois Supreme Court to punch his plane ticket.
Prof. Chemerinsky is absolutely correct. Huffington Post is now reporting that Judicial Watch has filed suit in D.C. today to compel the Senate to seat Mr. Burris. In addition to the embarrassing lack of legal and political judgment by the Senate leadership on this issue, we now have to witness the spectacle of Republican legal ideologues taking advantage of my party’s stupidity. If Rep. Pelosi and Sen. Reid remain in charge, we’ll be lucky if Pres. Obama’s legislative agenda gets anywhere.
Mespo:
“Than what does the word “Judge” mean in the context of Article I, Sec. 5 which says: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, ….”
Like I said, I agree with Chemerinsky:
http://tinyurl.com/8p3shv
mespo,
You just haven’t heard the recordings! 🙂 I still believe that taint was not the motivation of the Senate, that their disregard for the rule of law has been both consistent and flagrant and I fear their actions in this regard. The past 8 years of disregard for the rule of law has to my mind been “extraordinary”.
Jill:
“I just don’t see how the appt. of Burris rises to “extraordinary circumstances”.”
*********
I suppose “extraordinary” could be in the eye of the beholder, but in my half century on the planet I cannot remember a case where a sitting governor has been recorded haggling over the “price” of an appointment to the US Senate, or considered appointing himself to avoid state impeachment proceedings.
Thank you Sir.
FFLeo:
Not really. There is at least some effort to stop the appearance of corruption and that is a positive development.
Bob,Esq:
“I completely agree with your sentiment about the rule of law; congress has no equity court powers and congress has no delegated discretionary power to block an appointment.”
***********
Than what does the word “Judge” mean in the context of Article I, Sec. 5 which says: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, ….”
Mespo,
Is your statement, including “trying to stop corruption” tongue-in-cheek?
The Secretary of State is acting in an arbitrary manner that should give everyone pause. He signed other Blago papers but is refusing to sign these. This is a dangerous precedent.
Here’s my take away message. There is no priciple in the actions of the Senate, if there were they would not be willing to abandon them in one day’s time at the request of Mr. Obama. Other people have given very good analysis of what happens when Senators from the same party as the president start acting as if he is their party leader instead of the head of another branch of govt. This was a disaster with regards to bush and Senate Democrats look like they are going the same way.
As for activism it seems clear that the Senate is motivated (with some exceptions) by a. expediency and b. fear of Mr. Obama. Therefore should matters come before the Senate it makes no sense to appeal to the vast majority of these people any other way than to use tactics which appeal to expediency and put the force of activism onto Mr. Obama who will in turn pressure the Senate to act.
Signed,
Disgusted!
Mike Appleton:
I think you forgot “(d)” which is the Democrats will have shown themselves to have acted in accord with the public’s wishes according to the recent polls and will have been seen as trying to stop corruption. It’s not bad to have fought for the right and lost; it’s bad to not have fought at all.
I provided my views above and elsewhere about seating Mr. Burris. My perspective—as a man who wants limited government as a conservative Republican and who had a 25-year career as a federal employee with 3 additional years in the military—is that I do not want the Republicans to have the pleasure of experiencing just what Mike Appleton stated might likely happen.
Mr. Reid is foolish, the Democrats are acting just the way they have always done my fouling up their own party, and I am regretting my vote for them. I thought that after 8 disastrous years of the imbecilic and corrupt Bush Administration that surely the Democrats would not behave as they are now.
Why can’t a court with jurisdiction send a writ of mandamus to the Secretary of State legally compelling him to sign the appointment document instead of having the Illinois Supreme Court first making a ruling about the long-established rules?
The Secretary of State does not have the discretionary powers to decide the merits of Blagojevich’s appointment; he is just a bureaucrat certifying (promulgating) the executive’s appointment.
Mike Spindell, a qualifications case determines if the candidate meets the constitutional qualifications, age 35, a citizen for 9 years, and a resident of the state for which chosen. Art I, sec. 3, cl.2. The Powell case bars any additional requirements. Elections and returns cases involve contests over elections or appointments where the candidates meet the qualifications. Burris meets the qualifications. The dispute is over the appointment.
Personnally, I do not think the Senate has to accept an appointment signed by a guy who said himself on tape that the seat was up for sale, without further inquiry. I would not take a check from a guy who had said on tape that he intended to kite a check. Maybe the check is valid, but I want to know for sure.
No one has to depend on the MSM. I went to the net for the actual Senate Rule. The net has the complete complaint against Blago for everyone to read, without any MSN filtration.
I have already given my arguments against the Senate’s actions in the Burris matter. I certainly do not put myself in Prof. Tribe’s league on issues of constitutional law. However, the application of his views to the current mess require an intellectual subtlety that is missing in the Senate. Furthermore, Democrats will not be in control forever. At such time as the Republicans regain a congressional majority, recent history tells us that their deliberations will be colored by a strong dose of anti-intellectual, anti-academic fervor. A bad precedent set by Democrats in this case can be used by Republicans in the future to justify their own views about “judging” the elections and qualifications of newly minted senators. For me, at least, that is one scary thought.
The outcome of the Burris matter will be as follows: (a.) If the Senate refuses to seat him (after the Illinois Secretary of State has been slapped down), he will prevail in a court battle. (b.) Sen. Reid will once again wind up looking foolish, either because he will have backed down or will have been forced to accept the Burris appointment. (c.) The Democrats will appear disorganized and indecisive. The result is damage to the goodwill and credibility the party presently enjoys following the Obama election.
Mike Spindell: The rule says: ” 2. The Secretary shall keep a record of the certificates of election and certificates of appointment of Senators by entering in a wellbound book kept for that purpose the date of the election or appointment, the name of the person elected or appointed, the date of the certificate, the name of the governor and the secretary of state signing and countersigning the same, and the State from which such Senator is elected or appointed.”
That’s the Rule. That is all I meant when I said the secretary of state’s signature was required by the Rules. I don’t know what Keith and Rachel said.
The latest news is that Burris will go back and get the signature.
rafflaw:
“I have to admit that it is hard to listen to the Senate when they talk about an appointment being “tainted”. I think Prof. Turley is correct that the appointment is legal and until the Governor is convicted and/or impeached. If the Senate can stop a legal appointment because they think the Governor is dirty, what happened to the rule of law?”
rafflaw,
Do you find any of the arguments in favor of blocking the appointment persuasive at all? Even if the governor is later impeached, the appointment still stands. Congress would have to follow procedure and impeach Burris individually.
I completely agree with your sentiment about the rule of law; congress has no equity court powers and congress has no delegated discretionary power to block an appointment. And I’d add this to JT’s remarks, in so much as congress attempts to exercise power beyond that which was delegated to it within the constitution, it completely disregards Article IV’s guarantee of a republican form of government.
SIYOM,
Bob
Vince,
A few points on which we disagree:
“I think Mespo has made it clear that the Burris matter is a question of elections and returns, rather than qualifications.”
I’m not sure what this means, but on the surface this is clearly not a case of elections and returns. It is a case of prosecutorial zealotry that has offered edited tapes/transcripts in order to convict a man before indictment and/or trial. Do I think Blago is a corrupt jerk, yes I do, but I’m also acutely aware that my judgment is based on MSM reporting. MSM reporting for the most part is a cacophony of drivel spouted by shallow people and so any reasonable citizen should not rely on it.
“The Powell case makes it clear that Congress cannot add extra-constitutional qualifications for a duly elected member.”
Since our constitution purportedly endorses the principle of presumed innocence, until other wise proven, what then is the viable rationale for exclusion barring any indictment/conviction?
There is none except a suspect prosecutor grandstanding, edited tapes and a rush to judgment by Harry Reid. Burris was chosen in a lawful and normal process, which if it proves (after FitzG’s usual years of procrastination)corrupt at base could then be remedied.
“People keep saying that Blago has not been convicted or impeached. But they forget that the need for evidence beyond a reasonable doubt is the standard to keep out of jail or to avoid removal. It is not needed to open a Senate investigation into an appointment process where the Governor in his own words has stated an intent to put the Seat up for sale.”
You’re right that you don’t need any evidence to open a Senate investigation as the Senate’s long history of political game playing (See Joseph McCarthy for instance)has proven. However, your belief that “in his own words” he’s convicted himself does an injustice. First we only have an edited version of his own words which is doubtless edited for the prosecution’s benefit.
Second, if what is on tape has convicted him so clearly why has the indictment been delayed?
“He has an appointment by the Governor, but it does not carry the seal of the State of Illinois and the signature of the Secretary of State, as required by the Senate Rules.”
I don’t think the signature is required per Senate rules as per Keith and Rachel last night.
“Second, Powell was a qualifications case, not an elections and returns case. The Burris case is about the validity of the process, not the character or deeds of the candidate.”
I think that to state that this is about process is in the end somewhat disingenuous. To me this is about a public lynching of a Governor. Who, though no doubt is a corrupt jerk, nevertheless should have the right to have his side heard before judgment is pronounced.
Secondly, I remember the Powell case very clearly having lived through it as a New Yorker. Adam Clayton Powell was a man ahead of his time who battled for the rights of Afro-Americans and made true statements that the White Establishment deemed impolitic, even if they were spot on. He also had the temerity to date white women in a time when miscegenation laws were on the books of many States. The action against him was also a lynching and that is pertinent here. From a legal perspective Blago’s appointment was a legal one and should not be overturned because of media bred distaste.