Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Does the Senate have the constitutional authority to prevent the appointment of Roland Burris to Obama's seat? Akhil Amar, who I consider one of the finest legal scholars in the country, says yes.
Does the Constitution allow the Senate to refuse to seat Roland Burris, Illinois Gov. Rod Blagojevich's surprise appointee? In a word, yes. Here's why.Following English parliamentary tradition and early Colonial and state practice, the framers made the Senate its own gatekeeper and guardian. Each house of Congress is "the Judge of the Elections, Returns, and Qualifications of its own members," according to Article 1, Section 5 of the Constitution. At the founding, Senators were elected by state legislatures. If the Senate believed that legislators in a given state had been bribed into voting for a particular candidate, the Senate could refuse to seat him.
Because of the word "returns" in Section 5, what is true of elected Senators is equally true of appointed Senators. According to the Oxford English Dictionary, a "Return" in the time of the framers involved a report of an appointment made by a sheriff or other official. If the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process. (Alternatively, we might think of an appointment as an "election" by one voter.)
Here's the reasoning:
Both he and Blagojevich say that the Senate should not hold the governor's sins against his would-be senator. To be sure, there is no evidence Burris bribed the governor to get this seat. But imagine if Burris had won election only because other candidates were wrongly and corruptly kept off the ballot. Surely the Senate could properly deem this an invalid election. Similarly, it now seems apparent that there were candidates that Blagojevich refused to consider for improper reasons--because one refused to "pay to play" early on, or because another is at the center of the impending criminal case against the governor. With the appointments process so inherently and irremediably tainted, the Senate may properly decide that nothing good can come from a Blagojevich appointment.(And let's not feel too sorry for Burris, who, after all, has shown dubious judgment in accepting the nomination, given the circumstances. Weeks ago, Senate leaders announced that no Blagojevich appointee would be allowed to sit. What is Burris thinking? Many other arguably better candidates doubtless refused to have any dealings with Blagojevich once his crimes came to light; Burris got his shot at the Senate at their expense.)
Eugene Volokh disagrees. So does Brian Kalt.
Politics
Comments
Acck! Two of my favorite scholars disagree! (Volokh and Amar) ;)
I do not understand the rebuttal to Amar's argument. Volokh doesn't justify his position, merely concurring without comment to Kalt's opinion. I do not know Kalt. Here is his central argument, done in an analogy, which I found contradictory:
Kalt claims with certainty no one was corruptly left from consideration, but would have been if Jackson were appointed. Huh??? How does he know that? Why is a Burris appointment without taint but a Jackson appointment would be? Why is Jarrett "corruptly excluded" with a Jackson appointment but not a Barris appointment? Especially in terms of the Constitutionality of either appointment.
His next analogy appears to be a red herring given that the problem is not a corrupt election, but possible evidence of a corrupt appointment process. Plus, he doesn't make a case that a taint-free governer can override any reservations the Senate has with the entire process; why can't the Senate refuse an appointment and demand the seat be filled by election even if when there are no suspicions of corruption or cronyism by the Governor?
Also, specific to this case rather than Kalt's vacation in an abstract land far away, it's my understanding the Senate doesn't have to wait for a trial court to determine such evidence either and therefore can consider the evidence Blogevich has been charged with as relevant to their considerations. Am I wrong on that last point?
While I understand Amar's argument perfectly. I do not understand Kalt's argument given his very confusing, possibly contradictory analogies. Anyone else able to interpret Kalt in a way I'm failing to understand?
Posted by: Michael Heath | January 6, 2009 10:01 AM
Thanks for the post - I have been feeling strongly both ways on this, and the reasoning you outlined makes a whole lot of sense. You said "the Senate may properly decide that nothing good can come from a Blagojevich appointment. " This quote should be the epithet on Burris' "Totally Tacky Mausoleum / Monument To Roland Burris" (TM).
The only thing funnier than Roland Burris' nomination is Stephen Colbert last night "confusing" Plaxico Burris with Roland Burris, but at the end of the day, both Plaxico and Roland as Senator make about as much sense as keeping Blago out of jail.
Posted by: J-Dog | January 6, 2009 10:06 AM
Why is this post even necessary? Shouldn't there be a precedent for this? Is this really the first time in U.S. history that the Senate didn't want somebody to be senator?
I agree with the general point of the article, but something bugs me about this statement:
Yes, it is almost certain that Blagojevich picked Burris for less than honest reasons. Either Burris was especially friendly to Blagojevich, or Blagojevich is playing the race card. As an Illinoisian, we basically treat Blagojevich like we treat Bush: he's so blatantly denied making any mistakes that we don't trust anything he does anymore. But now, let's generalize this statement.
Why should we assume that any governor made the best possible decision when appointing a senator? It may be "obvious" that the Burris appointment is a sham. But now you're asking the Senate to make a judgement call based on emotion rather than logic. Suppose Mr. Governor of Statesland appoints Mr. SenatorWannabe. Mr. Governor is only human - there is no possible way he considered every factor when appointing Mr. SenatorWannabe over anybody else. Why should the Senate assume that Mr. Governor made the right decision, and that his decision making process wasn't "inherently and irremediably tainted?"
I guess my point is: the Senate needs to do one of two things. Either hear Burris out and make an actual informed decision on whether to let him join the Senate, or develop a clear set of criteria to determine when a governor's nomination is "good enough."
Posted by: Brandon | January 6, 2009 10:07 AM
The Senate can Constitutionally examine elections and returns.
Here is the best clearcut analogy:
In Minnesota, let us postulate that in defiance of Minnesota election law, which speaks to the matter, the SOS certifies the results and doesn't wait a week for the court appeal of the election returns. The Senate notes the Certification is invalid, and does not seat at that time.
In Illinois, in defiance of Illinois election law which does not speak to the matter (IE the SOS cannot invent law out of whole cloth), the SOS chooses not to certify the return (appointment). The Senate notes that the NON-Certification is invalid, that an appointed Certification was perfunctory due to absence of state law, looks to other evidence (IE the Governor's signature and registration), therefore Burris is certified, and becomes a Senator.
Posted by: Election View | January 6, 2009 10:24 AM
The other day, I believe on CNN, Chuck Todd opined that what was really going on here is that Harry Reid is going to stall action on the Burris appointment, hoping that Governor Blagojevich will be impeached and removed from office before any judicial action can be taken. In that event, the new governor would withdraw the nomination and appoint somebody else. The question is, can the new governor legally withdraw the nomination of Burris? I don't have the slightest idea here. However, consider the following scenario. Suppose a sitting Supreme Court Justice were to die this afternoon and President Bush appointed a replacement. Obviously, the new Congress would not have time to consider the nomination. Could incoming President Obama legally withdraw the nomination after Jan. 20? It would appear that the two situations are rather similer.
Posted by: SLC | January 6, 2009 10:46 AM
It seems to me that, so long as the Sec. State of Illinois refuses to countersign the appointment, no legal appointment has been made. So Burris would have to sue the Illinois Sec. State to force the countersignature, and THEN Reid would have an issue.
Posted by: Shygetz | January 6, 2009 10:54 AM
Burris turned away at Senate: http://www.denverpost.com/breakingnews/ci_11385400
Posted by: WScott | January 6, 2009 11:27 AM
The previous commentator is correct that until the Illinois secretary of state signs off on the appointment, the constitutional authority of the Senate to reject the appointment cannot be tested. Burris has petitioned the Illinois Supreme Court to force the secretary of state to perform his duty under the state statute, and most likely will prevail. Then the issue becomes whether the Senate can reject a duly appointed Senator. Contrary to Mr. Amar's position, the most pertinent Supreme Court precedent, Powell v. McCormack (1969), indicates that the Senate has no authority to prevent Burris from being seated. In that case, the House refused to seat Adam Clayton Powell after he won re-election on the grounds that he had engaged in financial improprities. The Court held that the House had authority solely to determine whethere Powell met the qualifications in Article I, sec. 2 -- the requirments of age, citizenship, and residence. The Court declined to dismiss the case as nonjusticiable under the political question doctrine. I believe the Senate is aware of the weakness of its position; Harry Reid has proposed sending the matter to a committee for further consideration, no doubt buying time in the hope that Blagojevich will be impeached. However, even if that were to occur, I don't see how the impeachment would retroactively invalidate the appointment.
Posted by: JSR | January 6, 2009 11:45 AM
The previous commentator is correct that until the Illinois secretary of state signs off on the appointment, the constitutional authority of the Senate to reject the appointment cannot be tested. Burris has petitioned the Illinois Supreme Court to force the secretary of state to perform his duty under the state statute, and most likely will prevail. Then the issue becomes whether the Senate can reject a duly appointed Senator. Contrary to Mr. Amar's position, the most pertinent Supreme Court precedent, Powell v. McCormack (1969), indicates that the Senate has no authority to prevent Burris from being seated. In that case, the House refused to seat Adam Clayton Powell after he won re-election on the grounds that he had engaged in financial improprities. The Court held that the House had authority solely to determine whethere Powell met the qualifications in Article I, sec. 2 -- the requirments of age, citizenship, and residence. The Court declined to dismiss the case as nonjusticiable under the political question doctrine. I believe the Senate is aware of the weakness of its position; Harry Reid has proposed sending the matter to a committee for further consideration, no doubt buying time in the hope that Blagojevich will be impeached. However, even if that were to occur, I don't see how the impeachment would retroactively invalidate the appointment.
Posted by: JSR | January 6, 2009 11:47 AM
Re JSR
I don't think that the issue is whether impeachment and conviction would invalidate the appointment or Burris. The issue is whether the incoming governor can rescind the appointment.
Posted by: SLC | January 6, 2009 12:54 PM
Following is a repost of a comment I made in another post about Burris. If Ed doesn't like such repetition, he can delete one of the posts and accept my apology-in-advance...
I'm of two minds on this: yes, Burris is -- through no fault of his own -- tainted merely by being appointed by Blago to fill a seat that Blago is credibly accused of having tried to sell; that can't look good under any circumstances. And ANYONE he appoints would be just as tainted.
OTOH, the state of Illinois is still legally entitled to TWO voting Senators, just like all the other states. And according to the law currently in effect, the governor of IL has the duty of appointing people to fill US Congress seats that are vacated in midterm. If the people of IL want to change that law, or impeach their current governor, that's cool with me; but that law is still in effect, that governor is still governor, and that state still needs to be fully represented in Congress.
Is Burris himself visibly unqualified to serve as a US Senator? Is there even a reasonable suspicion, at this time, that Burris bought his appointment? If the answer to both questions is "no," then he must be seated. And if incriminating evidence turns up in the future, then the DoJ can pursue it, and/or the Senate can, by a vote of two-thirds, expel him. And if none of that happens, he'll have to run for reelection later on. There's really no valid reason at this time to deny the people of IL the representation to which they're entitled.
I'll add to that comment my own, admittedly vague and uninformed, rebuttal of Amar's thesis: I really don't think the Senate has the authority, or the right, to refuse to seat someone who has been duly elected or appointed, and who meets all legal qualifications to serve. Allowing the Senate to do so can lead to a slippery slope where any majority can refuse to seat an incoming member for any reason. Would it be okay for a Republican majority to refuse to seat a duly elected Democratic, Green or Socialist member? And if a Republican majority did that, and got away with it, would it not be okay for the Democrats to retaliate in kind when they come to power?
We don't need this kind of chaos. Just seat Burris, watch how he acts as a Senator, and judge him accordingly, so we can just get on with running the country already.
Posted by: Raging Bee | January 6, 2009 1:32 PM
From Yahoo!news/AP:
I think it's correct for the Senate to reject him at this time because of these deficiencies, but what's the Illinois Sec of State's lawful duty in this case?
-Rusty
Posted by: minusRusty | January 6, 2009 2:07 PM
Rusty: His lawful duty is to witness and affix the seal of the state upon the governor's appointments--the only legal excuse for him not signing is if he thought that the governor was not the one freely making the appointment. He is clearly and willfully abdicating his duty by refusing to sign and affix his seal, and should be forced to do so by writ. However, until he is compelled to do so, Burris cannot be seated by the Senate.
Posted by: Shygetz | January 6, 2009 2:56 PM
Re SLC: Yes, those are two distinct issues. However, if Burris succeeds in his lawsuit and secretary of state White is compelled to sign off on the appointment, and Burris re-presents his papers to the Senate, at that point it becomes a federal constitutional issue concerning the Senate's power to block the appointment; once it is in that domain, I wonder whether a new governor would have any authority to revoke the appointment.
Re Rusty: Illinois law requires the secretary of state to "sign and affix the seal of the State to all commissions required by law to be issued by the governor." In his lawsuit, Burris argues (I think correctly) that the secretary of state's signature is merely a ministerial act and that he is without authority to withhold it; otherwise, this would eviscerate the appointment power vested in the governor. I think the Illinois Supreme Court will agree with Burris.
Posted by: JSR | January 6, 2009 3:03 PM
Playing devil's wiseass, didn't Gov. Blagojevich already admit he isn't willing to give anyone the seat freely. Sounds like you pretty much made White's case.
Posted by: Abby Normal | January 6, 2009 3:07 PM
Actually, the Constitution directly addresses the Supreme Court situation. The president's recess appointment would last until the end of the next session of Congress if not affirmed by Congress. Article II, Section 2: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
Posted by: W. Kevin Vicklund | January 6, 2009 3:46 PM
Follow-up. The second Chief Justice, John Rutledge, was a recess appointment. The Senate rejected his appointment, and had he not resigned, he would have lost the position at the end of the session.
Posted by: W. Kevin Vicklund | January 6, 2009 3:57 PM
Re W. Kevin Vicklund
But the Congress is currently in session so it would appear that this would not be a recess appointment and that therefore Article II, Section 2 would not seem to apply.
Posted by: SLC | January 6, 2009 3:58 PM
There's a difference between a Supreme Court appointment and the appointment of a Senator to represent IL: the former are subject to confirmation by another entity, and the latter (AFAIK) are not. So Obama could withdraw the name of a Bush appointee who had not yet been confirmed, while Blago's successor could not yank Burris out of the Senate after Blago's appointment of him became official.
Posted by: Raging Bee | January 6, 2009 4:04 PM
Oh, in that case, the nomination would fail, and then the Commander-in-Chimp would have to make a recess appointment: see previous post.
The president has the power to withdraw nominations before confirmation, if that is what you are asking.
Posted by: W. Kevin Vicklund | January 6, 2009 4:27 PM
With regard to the IL SoS and his signature, there is an extra wrinkle to consider. The 17th Amendment specifically states that interim appointments to the Senate are to be made by the state legislatures unless delegated to the governor (as here). However, the signature and seal might be a condition antecedent, an actual part of the process added by the legislature and not merely a ministerial duty. I don't endorse the argument, but it can't be dismissed out of hand.
As far as the Senate seating Plaxico, Powell is clearly the precedent, although it can be differentiated in that the election itself was not contested in that instance. I happen to believe Powell to be a serious error anyway, and wouldn't mind seeing it overturned.
Posted by: kehrsam | January 6, 2009 6:46 PM
Re W. Kevin Vicklund
So if I am interpreting Mr. Vicklund orrectly, he is saying that if a Supreme Court Justice died this evening and President Bush made a nomination, because Congress is in session so that it is not a recess appointment, therefore President Obama could withdraw the nomination on or after Jan 20, 2009.
Posted by: SLC | January 6, 2009 6:52 PM
I agree with JSR. I don't think Amar's take on Powell's relevance was correct--or at least Amar didn't take the time to explain it more cogently.
So it would seem that Powell controls what the Senate can do, unless the Courts want to distinguish the cases on the grounds that appointment differs from election, but since both are constitutionally authorized proceses, I don't see where that distinction takes us.
Note, though, that Blago was quite clever to select an African-American. It's not just that he gets political points for appointing an African-American to replace an African-American, but that the House's refusal to seat Powell was seen by many as being motivated by Powell's race (one of only two African-American Representatives), as he was excluded from the House based solely on allegations of misconduct, rather than being proven guilty). So Blago put Senate Dems in the position of reawakening bad memories in one of their core constituencies. He's an idiot, but a clever one.
Posted by: James Hanley | January 6, 2009 7:48 PM
Re James Hanley: Amar seems to be suggesting that Powell is distinguishable to the extent that the issue was the elected representative's individual qualifications, and not the integrity of the election itself. In Burris's case, Harry Reid and his cohorts appear to be concerned that Burris is "tainted" by Blag's prior actions in attempting to sell the Senate seat. In other words, it is a corrupt process rather than a corrupt legislator. However, I question whether this is sufficient to circumvent the narrow interpretation of the Senate's authority established in Powell. Note, however, that in Roudebush v. Hartke (1972), the Court, while declining to enjoin a state recount in a Senate election, did suggest in dicta that the Senate has fairly broad authority under Article I, sec. 5, to evaluate elections (and presumably appointments).
Posted by: JSR | January 7, 2009 1:19 PM