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Will Blagojevich's Burris Appointment Wind Up in the Supreme Court?

The Supreme Court probably isn't eager to hear another presidential election-related Constitutional question after all of the controversy generated by the Bush v. Gore decision of 2000. But it's possible that a constitutional question tied to Obama's election, albeit indirectly, may ultimately wind up at the Supreme Court.

I'm not referring to the somewhat meritless challenge to Obama's citizenship that the Court summarily disposed of back in December. The potentially Court-bound constitutional question arises out of last week's appointment of former Illinois Attorney General Roland Burris by embattled Illinois Governor Rod Blagojevich to fill President-elect Obama's now-vacated Senate seat. Recall that Blagojevich was arrested on charges of attempting to sell Obama's seat, though no indictment has yet been announced, and it's unclear whether the charges against Blagojevich will stick.

Notwithstanding the fact that Blagojevich is still the legitimate governor of the state of Illinois and, as such, holds the power to appoint Obama's replacement, Senate Democrats intend to block, or at least delay Burris' appointment. Hence, the legal issue: Does the Senate have the constitutional authority to prevent a duly-appointed replacement from being seated? Naturally, the blogosphere splits on the question.

There's some precedent for allowing the House or Senate to refuse to seat a duly-elected congressman, contends Larry Tribe in this Forbes op-ed. Back in 1967, the House of Representatives refused to seat Adam Clayton Powell, a senior member of the House of Representatives who was re-elected by his constituents, despite various alleged improprieties, including refusal to pay a court-ordered judgment, misappropriation of congressional travel funds and putting his wife on the congressional payroll for work she had not done. The Supreme Court upheld the House's decision in Powell v. McCormack, holding that Article I, Section 5 of the Constitution gives each house of Congress the power to judge whether an elected member has met the qualifications for office set forth in Article I, Section 2 of the Constitution. Of course, Tribe fails to mention that the Supreme Court in Powell ruled in Powell's favor, finding that under Article I, Section 2, the House was limited to evaluating membership criteria such as age and residence, which Powell had met. The Court acknowledged that the House could expel (as opposed to exclude) members for any reason based on a two-thirds vote. But because the House had not exercised its expulsion authority, the Court was precluded from approving the exclusion on that ground. Professor Calvin Massey takes this position at The Faculty Lounge.

Professor Hills at PrawfsBlawg, like Tribe, believes that the Senate can refuse to seat Burris, but for a different reason. Hills relies on another clause of Article I, Section 5, which gives the executive authority of a state the right to fill an empty Congressional seat. Hills suggests that Blagojevich, who is on the verge of impeachment, is not truly the executive authority of Illinois, thus rendering the appointment invalid and giving the Senate reason to refuse to seat Burris. 

Burris finds support from Steve Chapman at Reason Online, who makes the point that the Illinois legislature could have impeached Blagojevich but didn't do so -- and therefore, under Illinois law, Blagojevich remains the legitimate executive. In addition, Chapman points out that even if the Senate could challenge Burris' qualifications for reasons beyond age and citizenship, it's Blagojevich's legitimacy rather than Burris' credentials that are issue. To be sure, Chapman doesn't necessarily like the result, but emphasizes that the rule of law must prevail.

Of course, at the end of the day, whether Burris wins or loses, someone needs to pay for the fight, notes Dennis Byrne of the Chicago Daily Observer. Byrne points out that it's unlikely that Illinois Attorney General Lisa Madigan, traditionally responsible for defending the state, will spend money to defend Blagojevich (after all, she tried to have him thrown out of office), so Burris will be left to scramble for representation to retain his position. On the other hand, there's likely little appetite among traditionally liberal pro bono groups to side with Senate Democrats to reject Burris, who would be the only black member of the Senate.

As for me, in a worst-case scenario, Burris holds the Senate seat for two years. He's one of two Illinois senators and one of 100 nationwide, so how much harm can he do? More importantly, there's no indication that Burris has done anything wrong, except to have the unfortunate luck to be appointed by Blagojevich and the ambition to accept the appointment. Some constitutional disputes, like Bush v. Gore, have such monumental consequences that there's no choice but to fight them. The Burris appointment just isn't worth it.

Posted by Carolyn Elefant on January 5, 2009 at 02:11 PM | Permalink | Comments (0)


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