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Argument for Why the Senate May Decline To Seat Roland Burris:

Akhil Reed Amar and Josh Chafetz make it; the entire piece is worth reading, but here is what strikes me as the heart of the argument:

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.... [T]he Constitution itself sets up the Senate as the highest court of Senate elections. When the Senate speaks as this court, its adjudications are legal judgments that no other court may properly reopen....

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....

Nor does it matter, from the Senate's point of view, that Blagojevich hasn't yet been convicted. In this context, the Senate itself is a judge, in the words of the Constitution, and can decide facts for itself. It need not follow the rules of criminal courts. That means it need not find Blagojevich guilty beyond reasonable doubt, as a court would if his liberty were in jeopardy. It is enough for the Senate to reject Blagojevich's appointee if a majority of senators are firmly convinced that Blagojevich is corrupt and that any nomination he might make is inherently tainted by such corruption....

I have a very high opinion of Amar and Chafetz, but here I think they're mistaken, and I think Brian Kalt (Concurring Opinions) has it generally right: The initial misconduct on Blagojevich's part doesn't carry over to a bribe-free appointment of the person he ultimately appointed. In any case, though, read Kalt's argument — family duties keep me from blogging further on this myself.

UPDATE: Ann Althouse has more.

FURTHER UPDATE: Michael Rappaport (The Right Coast) likewise disagrees with Amar & Chafetz:

Consider the following analogy. Amar and [Chafetz] write: "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." That is true, but if the same state legislature produced another candidate, without any evidence of bribery, the Senate should not be allowed to refuse to seat him.

Related Posts (on one page):

  1. Left/Right Consensus: Seat Burris:
  2. Argument for Why the Senate May Decline To Seat Roland Burris:
MarkField (mail):
Until I read this, I was of the view that the Senate had no business rejecting Burris. Amar and Chafetz make a very good point, though. Hmm.
1.1.2009 5:02pm
John (mail):
Once again, Constitutional scholars try, through analogy, to pretend the Constitution says something it doesn't. The Constitution does say the Senate is "the Judge of the Elections, Returns, and Qualifications of its own members." Because a fraudulent election could be reviewed and acted by the Senate under this provision, it is argued, then it follows by analogy that we can use this same provision to allow the Senate to review appointed senators.

Unfortunately, when this provision was written, there were no circumstances where governors would appoint senators, so the term "Appointments" was not added to the list of "Elections, Returns, and Qualifications." Nor, when the Constitution was amended to allow both the popular election of senators and the right of states to enact laws that permit governors to make such appointments, did anyone also amend the Constitution to allow the Senate to review "appointments."

So, if you actually want to use the words of the Constitution (hah), I think all the Senate can look at is the qualifications of Burris (no real question there) or the "return," which is just the validity of the document showing the governor's pick. There will be no question over the validity of that document either.

But we cannot reason from the fact (if it is one) that the Senate can look into whether an election of a senator is "tainted" that ipso facto it can look into whether an appointment was. It might be a good idea to amend the Constitution to provide for it, but it's not there now.
1.1.2009 5:26pm
J. Aldridge:
I'll agree with this because technically, the Senate can only judge whether a Senator was elected or appointed per State law and meets the constitutional eligibility requirements. If no state law was violated by the Gov then there is nothing further to judge.
1.1.2009 5:29pm
Sticky (mail):
Eugene,

I'd like to know your thoughts regarding any potential problems stemming from Article V's guarantee of equal suffrage in the Senate. The Democratic caucus has made it clear that the Senate will refuse to seat any person appointed by Illinois's current government. This refusal to seat a second senator from Illinois seems to run afoul of Article V. Of course, the equal suffrage is not needed if a state consents. How would that happen? Would a concurrent resolution be enough, or would any consent have to pass Blagojevich's desk? A comment in a previous post touched on this but I haven't been able to find any sort of answer.
1.1.2009 5:34pm
Undecided:
Eugene,


The initial misconduct on Blagojevich's part doesn't carry over to a bribe-free appointment of the person he ultimately appointed.


There's an interesting question--is Burris's appointment really bribe-free? We can't be sure, can we?
1.1.2009 6:14pm
Mike Mahoney (mail):
Article I, Sec. 2, paragraph four.
Article I, Sec. 3, paragraph two (near the end of the paragraph).
Article I, Sec. 4, paragraph one.
Article I, Sec. 4, last clause.
Article V. last clause.
Amendment XVII, paragraph two.

The legislature of the State of Illinois has the sole power and responsibility to fill the open U.S. Senate seat.
The governor's legal appointments can be recalled at will at any time by that body.
1.1.2009 6:14pm
Allan (mail):
How is he related to Plaxico?
1.1.2009 6:17pm
ShelbyC:

...any potential problems stemming from Article V's guarantee of equal suffrage in the Senate...


Article V doesn't gaurantee equal suffrage, it just prevents the constitution from being amendmend to deprive a state of equal sufferage.
1.1.2009 6:22pm
obi juan (mail):
Undecided, can't that be said about any appointment at all? We can never truly be sure about any appointment.
1.1.2009 6:22pm
Oren:
Burris != Burress
1.1.2009 6:31pm
David M. Nieporent (www):
Unfortunately, when this provision was written, there were no circumstances where governors would appoint senators, so the term "Appointments" was not added to the list of "Elections, Returns, and Qualifications." Nor, when the Constitution was amended to allow both the popular election of senators and the right of states to enact laws that permit governors to make such appointments, did anyone also amend the Constitution to allow the Senate to review "appointments."
That's not true; the pre-17th amendment Constitution authorized governors to appoint senators to fill vacancies temporarily.
1.1.2009 6:36pm
fortyninerdweet (mail):
As a hypothetical side question, what would have been the options for the senate IF Blago had already made the appointment of one of the earlier candidates, and had then been arrested - with the appointment itself announced as being the result of alleged bribery? Would the senate have had to unquestionably seat the bribe payer (or benefactor)?

It seems to be the pov of some of the commenters here that the appointee, barring a criminal conviction, would have an unchallengeable right to the seat. Of course that outcome would probably cause an even lower opinion of politicians than now exists - if that were possible. But wouldn't that be an even worse fix?
1.1.2009 6:40pm
Eli Rabett (www):
Strikes me that the original error leading to this mess was the judge who bailed him. Given the charges and evidence, the condition of bail should have been that Blago not appoint anyone, and the penalty should have been contempt of court with a multiyear sentence.
1.1.2009 6:40pm
Eli Rabett (www):
Oren while

Burris != Burress

they both shot themselves in the foot
1.1.2009 6:42pm
Steven Den Beste (www):
I think the point they're trying to make, with which I agree, is that even if the Senate "unjustly" excludes Burris, there's no appeal. It's like Presidential pardons; even if those are unjust, the pardon power is absolute.

The Constitution suggests some reasons why the Senate would do such a thing, but in the end the rule means what the Senate chooses to interpret it to mean. The only "check" on that is the voters. If the Senate started to abuse that provision of the Constitution, the voters can vote against the Senators next time they're up for election.
1.1.2009 6:45pm
Cornellian (mail):
Given the suspicious circumstances surrounding Blago's conduct, could the Senate refuse to seat him pending an inquiry into whether his appointment really was corrupt?
1.1.2009 6:47pm
John (mail):
I was not aware of Mr. Nieporent's point that governors have long had the power to make appointments to the Senate. This seems to reinforce the point that if the power to review appointments, as well as elections, had been intended then it could have been written in; it wasn't.
1.1.2009 6:52pm
pluribus:
Assume that John Smith bribes Governor Thomas Jones to appoint him to a vacant Senate seat. Assume further that Smith is 31 years old, that he has been a citizen of the United States for 10 years, and that he is an inhabitant of the state for which he was appointed, so he meets the qualifications of senators set out in Article I, Section 3. Also assume that the Senate majority votes to deny Smith a seat in the Senate because his appointment was procured by bribery. He sues to compel the Senate to seat him. The Senate answers, citing Article I, Section 5, which provides that "each house shall be the judge of the elections, returns and qualifications of its own members." Smith argues that the fact that he procured his seat by bribery does not diminish the fact that he meets the qualifications for U.S. Senators set out Article I, Section 3. He further argues that, under Powell, the Senate can only judge his election, his "returns" (since he was appointed, there was neither an election nor any "returns," he says), and his qualifications as set forh in Article I, Section 3. Will the Supreme Court say on the authority of Powell that, yes, Smith is entitled to the seat he procured by bribery? I would hope not. The only substantive difference between Smith and Burris that I can see is that Burris obtained his seat by the appointment of a governor who has demonstrated that he is open to bribery, and who has in fact solicited bribes for the very purpose of appointment a senator. I think the Senate should be entitled to deny him a seat.
1.1.2009 6:52pm
BZ (mail):
Well, their argument proves too much. This isn't a question of whether the election or appointment was procedurally defective; this is whether the Senate gets to pick or choose the appointee's qualifications.

The case that decides the basic issue is Powell, which they simply analogize away by claiming that there was an undisputed election in Powell. But if the only distinction is that there was an election there and a disputed appointment here, then their argument is exactly what the Supremes rejected in Powell: you can't add qualifications beyond those in the Constitution, where the added "qualifications" are that you don't like what the guy or someone around him/her has done. That puts the Senate in the role of deciding not the validity of elections/appointments, but qualifications (was Burris tainted).

A few years back I was (marginally) involved in exactly this kind of question, involving an election where there was evidence of all kinds of illegal and disputed shenanigans. After a complete investigation, even though the incidents were proven, the misconduct did not rise to the level of giving the Senate the power to refuse to seat the disputed victor. There were no indications that the victor lacked the required qualifications, especially since the illegality did not involve the victor. The new Senator was seated. Clear precedent, which Reid ignores at his peril. Of course, when has that ever stopped the man from Searchlight?
1.1.2009 7:02pm
pluribus:
David M. Nieporent:

That's not true; the pre-17th amendment Constitution authorized governors to appoint senators to fill vacancies temporarily.

Only if the vacancy happened during a recess of the legislature. If the legislature was in session, the legislature filled the vacancy. The governor's temporary appointment was good only until the next meeting of the legislature, at which time the legislature would fill the vacancy. Art. I, Sec. 3, cl. 3.
1.1.2009 7:03pm
pluribus:
BZ:

A few years back I was (marginally) involved in exactly this kind of question, involving an election where there was evidence of all kinds of illegal and disputed shenanigans. After a complete investigation, even though the incidents were proven, the misconduct did not rise to the level of giving the Senate the power to refuse to seat the disputed victor. There were no indications that the victor lacked the required qualifications, especially since the illegality did not involve the victor. The new Senator was seated. Clear precedent, which Reid ignores at his peril. Of course, when has that ever stopped the man from Searchlight?

Care to give us the particulars--names, dates, and courts (if any) who decided, for this "clear precedent"? Also, since in this case "the misconduct did not rise to the level of giving the Senate the power to refuse to seat the disputed victor," would you care to tell us when the "misconduct" would rise to that level?
1.1.2009 7:09pm
Crunchy Frog:
For all practical purposes, I think the Senate can do whatever it wants on the matter, without seeing much interference from a SCOTUS that's already leery about delving into "political questions", and unwilling to buck a Senate that may be tasked to confirm up to three justices in the next term.
1.1.2009 7:21pm
man from mars:
Eugene,

I disagree with your self-proclaimed "high opinion" of Amar. His works to me seem nothing more than apologies for unfettered government power to be exercised against the unpopular (which, I suppose, is why he so lionized in the press).

Just to pick an example, consider his attempt to argue that "Commerce" in the commerce clause does not actually refer to economic interchange, but instead to "all forms of intercourse in the affairs of life" (p. 107 of his book on the Constitution), which he bases on some tertiary definition of the term, despite the fact that the usual legal meaning of term includes only economic acts. All his strained reading does is increase the power of the federal government. Nobody reads a legal document by trying to find the most obscure usage of each of its terms - unless his reading is tendentious.

Similarly in the Blagojevich case, it's a mistake to view this "argument" he makes at face value. The argument itself, as explained by numerous commentators above, goes directly against the plain text of the Constitution. It's just one more example of the specious syllogism all statists make who seek to cloak their schemes in the Constitution: "(a) this is what I want; (b) so this is what the Founders wanted; so (c) this is what the Constitution means."

What is really going on here is this. Blagojevich is unpopular, so Amar is misreading the Constitution to give the central authority, namely Congress, the power to act against this unpopular person. His view, being by definition the popular one, may be popular, but he's not making a legal argument, he's just kowtowing to the mob. Which is precisely what the Constitution and its scholars are supposed to prevent.

I am disappointed that you, Eugene, are joining the crowd of Amar supporters (e.g. the Times, the Yale group, and so on) - it's a populist, statist movement directly antithetical to constitutional values.
1.1.2009 7:26pm
Connecticut Lawyer (mail):
I tend to agree with Prof. Volokh on the legal merits. I guess we'll find out the answer in about two years: that's how long it will take for this case to wind its way up to the Supreme Court.

What's even more interesting is the politics of this. Can you spell schadenfreude? President-Elect Obama's aura as the Mr. Clean of the New Millenium - and the Congressional Democrats' promise to have the cleanest Congress, ever - are both looking a little stained these days. It's so sad.
1.1.2009 7:35pm
Hamilton:
With respect to the return, Illinois law requires that the Sec of State sign and affix the state seal. Secty. White has refused to do so and Buriss has filed a motion for leave to file a complaint for mandamus with the Ill. Supreme Court. That Court need not take jurisdiction, forcing White to seek mandamus in the Circuit Court, with attendent appeals. This technicaity would seem to give cover, for the time being, to the Senate.
1.1.2009 7:38pm
pluribus:
Connecticut Lawyer:

What's even more interesting is the politics of this. Can you spell schadenfreude? President-Elect Obama's aura as the Mr. Clean of the New Millenium - and the Congressional Democrats' promise to have the cleanest Congress, ever - are both looking a little stained these days. It's so sad.

I certainly agree that this makes the Democrats look bad. A corrupt Democratic governor, a Democratic legislature trying to impeach him, a Democratic senator-designate, and a Democratically controlled U.S. Senate refusing to seat him. And a Democratic legislature that refused to solve the whole mess by promptly providing for a special election, because they obviously were afraid that a Republican might win and thus diminish Democratic power in the Senate. But I fail to see how this rubs off on Obama, and I think any effort to taint him with this is merely a smear. He sponsored reform measures in Illinois and, so far as the Blagojevich tapes are concerned, it appears he and his staff refused to "play for pay." You may choose to believe he is not "Mr. Clean," but until there is evidence that support you I will not impugn his ethics. Why do you suppose the governor said (about Obama) "F---- him?"
1.1.2009 7:53pm
Angus Lander (mail):
I'm inclined to think that Amar's and Chafetz's equivocate. Basically, their argument runs as follows:

1. The Senate may refuse to seat a person picked in a corrupt election.
2. "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."
3. If "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" then Burris was picked in a corrupt appointment process.
4. "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."
5. Burris was picked in a corrupt appointment process. [3,4]
6. The Senate may refuse to seat a person picked in a corrupt appointment process. [1,2]
7. The Senate may refuse to seat Burris [5,6]

The problem is that there are potentially two different senses of "corrupt appointment process" in play here. In premises (1) and (2) (both Constitutional constructions), "corrupt appointment process" arguably means something like "illegal appointment process" (one in which bribery played a role), whereas in premise (3) (an ethical judgment) "corrupt appointment process" clearly means "morally criticizable appointment process." Because a morally criticizable appointment process is not necessarily an illegal appointment process (and, indeed, in Burris's case probably isn't), Amar's argument is equivocal, invalid and thus unpersuasive.

Of course, all this goes out the window if originalist analysis were to show that Art. 1 Sec. 5 (and/or Powell) permits the Senate to refuse to seat someone who was elected / appointed in a morally dubious manner, for then the Constitutional constructions in (1) and (2) are not partially constituted by terms of art.
1.1.2009 8:02pm
pluribus:
I have found Professor Amar's work--particularly his "America's Constitution: A Biography"--to be consistently enlightening. If he believes, in accordance with the text of the Constitution, that the Senate should be "the judge" of Buriss's returns and qualifications, I'm not clear why anyone would regard this as more "statist" than the Powell alternative, which is to let the U.S. Supreme Court be "the judge." In csase of a dispute, somebody must be "the judge," and I would rather it be the elected Senate than the appointed Supreme Court. What provision of the Constitution says that in cases such as this the Supreme Court shall be "the judge"?
1.1.2009 8:03pm
John (mail):
Those commenters who point out that it would be a bad thing if a bribed governor appointed the briber to the Senate confuse two concepts: (A) "That's a good idea" and (B) the Constitution. Not every terrible thing is prohibited by the Constitution--some are prohibited by statute (like bribery) and some aren't prohibited at all.

In this case, the Constitution says nothing about the Senate having the power to bar the seating of an appointment that was shady. If you think it should, then amend it.
1.1.2009 8:05pm
pluribus:
John:

In this case, the Constitution says nothing about the Senate having the power to bar the seating of an appointment that was shady. If you think it should, then amend it.

I think the Constitution says the Senate (not the governor, not the U.S. Supreme Court) shall be "the judge" of "the elections, returns and qualifications of its own members." I therefore see no need to amend the Constitution.
1.1.2009 8:09pm
DiverDan (mail):

There's an interesting question--is Burris's appointment really bribe-free? We can't be sure, can we?


You are correct, of course -- we can never be certain that this appointment was free of corruption. By the same token, we can never be certain that the New York Governor's appointment of Hillary Clinton's successor (Caroline Kennedy, I presume?) will be free of corrupt influence. Do you think the Senate Democrats will apply the same standard to Caroline Kennedy as to Roland Burris?
1.1.2009 8:10pm
Hamilton:
. . . will apply the same standard to Caroline Kennedy as to Roland Burris?

If you mean the standard of whether the governor is currently subject to criminal proceedings and impeachment proceedings. Yes.
1.1.2009 8:13pm
Eli Rabett (www):
Eli understands that the Supreme Court wants a raise. Ain;t that interesting
1.1.2009 8:32pm
Mike Keenan:
If we have a system where the Seanate has to accept the appointment, it is quite broken.
1.1.2009 8:38pm
Dave N (mail):
Pluribus,

I believe BZ is referring to Senator Reid's OWN re-election in 1998, when he beat John Ensign (now his junior colleague) by the underwhelming margin of 401 votes out of approximately 435,000 votes cast.
1.1.2009 8:39pm
Anon Y. Mous:
Steven Den Beste:

I think the point they're trying to make, with which I agree, is that even if the Senate "unjustly" excludes Burris, there's no appeal. It's like Presidential pardons; even if those are unjust, the pardon power is absolute.

The Constitution suggests some reasons why the Senate would do such a thing, but in the end the rule means what the Senate chooses to interpret it to mean. The only "check" on that is the voters. If the Senate started to abuse that provision of the Constitution, the voters can vote against the Senators next time they're up for election.


That's not really true in this case. Here, we have the Senators of the other 49 states colluding with Illinois's Dick Durbin to deny the people of Illinois its full representation in the Senate. The only possible recourse the people of Illinois have is against their own Sen. Durbin in 2014, when his current term runs out. Even should they decide to punish him, how much effect will that have on the behavior of the other 98 senators?
1.1.2009 8:42pm
MarkField (mail):

Of course, all this goes out the window if originalist analysis were to show that Art. 1 Sec. 5 (and/or Powell) permits the Senate to refuse to seat someone who was elected / appointed in a morally dubious manner, for then the Constitutional constructions in (1) and (2) are not partially constituted by terms of art.


At least one Anti-Federalist thought so:

"By this Federal Constitution, each House is to be the judge, not only of the elections, and returns, but also of the qualifications of its members; and that, without any other rule than such as they themselves may prescribe. This power in Congress, I take to be equal to that of a negative on elections in general." Cornellius, 18 Dec. 1787.
1.1.2009 9:17pm
first history:
One reason to reject Burris; from ProPublica via Politico (take that David Kopel!):


While state attorney general in 1992, Burris aggressively sought the death penalty for Rolando Cruz, who twice was convicted of raping and murdering a 10-year-old girl in the Chicago suburb of Naperville. The crime took place in 1983.

But by 1992, another man had confessed to the crime, and Burris' own deputy attorney general was pleading with Burris to drop the case, then on appeal before the Illinois Supreme Court.

Burris refused. He was running for governor.


The Senate has a right and duty to investigate his fitness for office, and this incident should be fully investigated.
1.1.2009 9:30pm
BiteMe:

But imagine if Burris had won election only because other candidates were wrongly and corruptly kept off the ballot.

Then it is up to those other candidates, who are the parties with standing to assert a claim, to take action... not for the Senate to impose its own interpretation on the facts.
1.1.2009 9:43pm
Procedure_counts.:
pluribus:

I think the Senate should be entitled to deny him a seat.

Mike Keenan:

If we have a system where the Seanate has to accept the appointment, it is quite broken.

I submit that they do not have the authority to refuse to seat him for misconduct, as absence of misconduct is not a criteria for being seated.

That said, after seating him, they are entitled to turn right around and attempt to expel him, based on misconduct used to get the seat, assuming such misconduct took place.
1.1.2009 9:51pm
first history:
According to SCOTUSblog, Lyle Denniston reports:


The Senate Democratic leaders’ spokesman, James Manley, told news organizations on Tuesday: “We are not making a judgment about the qualifications of the appointee, but about whether [the] appointment itself was tainted by fraud. We believe we are entitled to do that. This is like judging the integrity of an election, free from fraud or corruption."

Denniston identifies several questions unanswered by Powell v. McCormick:


. . . Is the power of the Senate (or House) to judge the mode of selection the same whether one was chosen by election or appointment? Does a state have any more power to control the method of filling a vacancy in one of its Senate seats than it does to hold an election for such a seat? How much deference, if any, does the Senate owe to the state’s mode of appointing a Senator? Is a “taint” perceived in the mode of appointment a sufficient justification for excluding the appointee?
. . .
On the Senate’s authority to judge the mode of selection of new members, the courts have been quite deferential. There is no indication that the courts, if drawn into the issue, would evaluate congressional action regarding the mode of selection any differently in the case of an appointed member than for an elected member.
. . .
A house of Congress’s authority to judge an election (and, perhaps, an appointment) would appear to take precedence over any state method of selection, under the Supremacy Clause and the specific grant of authority under Article I, Section 5.

Thus, the Senate may well be in a position to look behind a Blagojevich appointment and apply a federal Senate standard of propriety regarding the appointing authority (the governor) — so long as it did not add a new “qualification” as such for the individual chosen.


My bet is that the issue will sent to the Senate Rule Committee fpr "investigation," taking enough time for Blago's impeachment and removal. Then a new candidate will be nominated by the Lt. Governor, and the Senate will then accept the new nominee.
1.1.2009 9:54pm
Procedure_counts.:

I think the Constitution says the Senate (not the governor, not the U.S. Supreme Court) shall be "the judge" of "the elections, returns and qualifications of its own members."
"The Judge" in this context to me, says to judge whether the election, return, or qualifications are in fact true. Is he the winner of the election is a question the Senate can ask -- not whether the election was fair or free of corruption. Whether he was indeed appointed by the governor perhaps the papers are forged or the governor appointed someone else, but died and the name was changed on the paperwork.
It is possible, that even a corrupt scoundrel like Blago could, without a bribe or misconduct on anyone's part, appoint someone who also committed no misconduct. It would clearly be wrong to refuse to seat such a appointee.
1.1.2009 10:03pm
Forman:
""The Judge" in this context to me, says to judge whether the election, return, or qualifications are in fact true."

If that's the standard, presently there is no true return because the Secretary of State has refused to endorse (sign)and seal it (affix the great seal).
1.1.2009 10:14pm
Procedure_counts.:

What provision of the Constitution says that in cases such as this the Supreme Court shall be "the judge"?
None, and I don't see anyone suggesting that. Instead, SCotUS is the judge of whether the Senate acts in a manner that violates the Constitution. Marbury v. Madison.

Suppose there are 2 birth certificates for an appointee that show his age either over 30 or under 30. The Senate would be the judge of which is the one to accept, and there would be no appeal. Because there is no appeal, even for misconduct of Senators themselves in this process, the power of the Senate in this regard should be strictly construed against that body, as the Powell court did.

I do not find episodes such as the 1854 Kansas episode instructive, as they were not reviewed by the Court.
1.1.2009 10:21pm
Procedure_counts.:
Forman:

If that's the standard, presently there is no true return because the Secretary of State has refused to endorse (sign)and seal it (affix the great seal).
Exactly right. And the proper remedy is for Burris to seek a writ of mandamus to compel the Secretary to perform his function. I understand this has been filed.

I believe Burris could even pursue the writ even after Blago is gone -- Burris was the appointee of the sitting governor. But if the new governor were to make a second appointment, that the Secretary did seal, and the Senate accepted that second appointment, then that would be within the Senate's power. I'd see a big lawsuit against the Secretary however, since Burris would have clearly been injured by the acts of the Secretary, if those acts were found to be wrongful. Could depend on the dates a writ was granted to Burris.
1.1.2009 10:26pm
LM (mail):
man from mars,

I disagree with your self-proclaimed "high opinion" of Amar. [...] I am disappointed that you, Eugene, are joining the crowd of Amar supporters (e.g. the Times, the Yale group, and so on) - it's a populist, statist movement directly antithetical to constitutional values.

Earthlings have been known to judge scholars on their intelligence, expertise and the quality of their analysis, whether or not we agree with their conclusions.

And while we've got you here, what's the deal with the anal probes?
1.1.2009 10:34pm
Procedure_counts.:
Angus Lander:

1. The Senate may refuse to seat a person picked in a corrupt election.

Maybe I missed it, but what case says this? I know Congress has done it before, but what court case has held that such an exercise is constitutional?

I note, in the linked article:

And let's not feel too sorry for Burris, who, after all, has shown dubious judgment in accepting the nomination, given the circumstances.
I see this sentiment often, but I strongly disagree. Had Burris declined, it would have gone to someone else. Assuming I had the inclination and the acumen to represent my state in the Senate, I'd take the appointment from Blago. I might resign the day after the new governor is sworn in, but I'd take the appointment -- nothing compels an honest man who would do a good job in the position from accepting the appointment from a crook. Churches accept tithes from thieves and do good work with the ill-gotten gains.
1.1.2009 10:37pm
Oren:

The only possible recourse the people of Illinois have ...

They can also direct their state legislature to convene a special election.
1.1.2009 11:04pm
Angus Lander (mail):
Procedure_counts,

I don't know the answer to that question, but nor am I committed to (1). My objective was to show that, even granting Amar et. al. every one of their empirical and ethical claims, they fail to show that the Senate may refuse to seat Burris. I take no position on whether Amar, et. al.'s empirical and ethical claims are correct. If they aren't then their argument is unsound both because it is invalid (my point) and because some of its premises are false (your suggestion).
1.1.2009 11:05pm
Procedure_counts.:
Angus Lander:

I understand and agree. I genuinely was inviting anyone who knows of such an instance to let us know.

Having just taken the time to re-read Powell, I am even more firmly convinced that the the Senate must seat Burris. The only constitutionally valid procedure for the Senate to sat Burris, and then try to expel him. But as Powell notes, at least in the House, prior acts taking place before the member was seated are not consideration for expelling him, at least in the House rules. If someone know whether the Senate has a similar rule, I'd like to hear it. However, I can see bribery to obtain the senate seat as being an exception to that rule.

Justice Douglas wrote a short concurrence in Powell, that I had not read before, quoting from the Senate debates during the Langer affair:


"Mr. LUCAS. . . . The position the Senator from Utah takes is that it does not make any difference what a Senator does in the way of crime, that, whenever he is elected by the people of his State, comes here with bona fide credentials, and there is no fraud in the election, the Senate cannot refuse to give him the oath. That is the position the Senator takes?"

"Mr. MURDOCK. That is my position, yes. [Footnote 2/28]"

"* * * *"

"My position is that we do not have the right to exclude anyone who comes here clothed with the proper credentials and possessing the constitutional qualifications. My position is that we do not have [395 U. S. 559] the right under the provision of the Constitution to which the Senator from Florida referred, to add to the qualifications. My position is that the State is the sole judge of the intellectual and the moral qualifications of the representatives it sends to Congress. [Footnote 2/29]"

"MR. MURDOCK [quoting Senator Philander Knox]. 'I know of no defect in the plain rule of the Constitution for which I am contending. . . . I cannot see that any danger to the Senate lies in the fact that an improper character cannot be excluded without a two-thirds vote. It requires the unanimous vote of a jury to convict a man accused of crime; it should require, and I believe that it does require, a two-thirds vote to eject a Senator from his position of honor and power, to which he has been elected by a sovereign State.' [Footnote 2/30]"

Justice Douglas concludes with:

I believe that Senator Murdock stated the correct constitutional principle governing the present case.


It all boils down to this: "My position is that we do not have the right to exclude anyone who comes here clothed with the proper credentials and possessing the constitutional qualifications." I can't improve on that statement.

That a scoundrel may be seated once in a rare occasion, is preferable to the alternative of a Senate run amok with power to exclude on criteria du jure. The remedy to the scoundrel is removal by 2/3 vote. There is, unfortunately, no remedy to a Senate run amok.
1.1.2009 11:34pm
Mike 'Ralph' Smith:

The Senate has a right and duty to investigate his fitness for office, and this incident should be fully investigated.


The Senate is the judge of "elections, returns, and qualifications," not fitness. The notion that fitness for office was something Congress could judge based on the "qualifications" language was rejected in Powell. I'm also greatful that this is so. The Senate should have no business judging the fitness for office of senators. That's the sole perogative of the those legally empowered to elect and/or appoint them.
1.1.2009 11:43pm
Mike 'Ralph' Smith:

I was not aware of Mr. Nieporent's point that governors have long had the power to make appointments to the Senate. This seems to reinforce the point that if the power to review appointments, as well as elections, had been intended then it could have been written in; it wasn't.


I'm not sure that the word "elections" doesn't cover appointments. The word "election" can have a much broader meaner than a poll of voters; it can also basically mean any choice or selection. Thus, I think it certainly could have been intended to include "elections" of senators by state legislatures or perhaps a little more broadly "elections" of senators by gubernatorial appointments. The fact that senators were originally chosen by state legislatures seems to bolster this interpretation since it seems odd to me that the constitution would give power to judge elections for the house but not selections by the state legislatures. I've also read that the senate has in the past has exercised authority under this clause to judge selections of senators by state legislators.
1.1.2009 11:52pm
Mike 'Ralph' Smith:

I think the point they're trying to make, with which I agree, is that even if the Senate "unjustly" excludes Burris, there's no appeal. It's like Presidential pardons; even if those are unjust, the pardon power is absolute.


But, that's not true. Powell shows that SCOTUS has at least some limited authority in deciding whether Congress acts constitutionally in excluding a member. Now, it may be if the Senate uses the right hook to exclude Burress, then the court won't second guess them. But, for example, if the Senate were to exclude Buress because he's not qualified because he's too old, then I have no doubt based on Powell that the court would overturn this decision. Now, whether they would overturn a decision that the appointment process is tainted/morally criticizable and there's no suggestion of illegality or fraud in the apointment itself is a more difficult question.
1.2.2009 12:00am
Mike 'Ralph' Smith:

My bet is that the issue will sent to the Senate Rule Committee fpr "investigation," taking enough time for Blago's impeachment and removal. Then a new candidate will be nominated by the Lt. Governor, and the Senate will then accept the new nominee.


Is it clear that an appointment can be withdrawn so long as the appointee has not yet been seated by the Senate? This seems different that the typical presidential or gubernatorial appointment that requires legislative approval.
1.2.2009 12:06am
Orson Buggeigh:
Procedure Counts asks a couple of good questions:

"Maybe I missed it, but what case says this? I know Congress has done it before, but what court case has held that such an exercise is constitutional?"

I'm not aware of case law, but outrage arising from questionable elections to the Senate brought about the 17th Amendment.

In 1899 William A. Clark, a Montana copper magnate, sought the U.S. Senate seat on the Democratic ticket from the new state of Montana. Whiskey and dollars flowed freely in Helena, and there were rumors of state legislators being paid to vote for Senate candidates. Clark won - and claimed victory, though the losers immediately questioned the propriety of the election. Clark went to Washington DC in December, 1899. The Senate refused to seat him when it began the new session, and finally Clark gave up and went home in May, 1900.

The Montana legislature still had to deal with the vacancy in the Senate - and Clark, possibly through dubious means, was appointed to fill the vacancy by the Lt. Governor when the Governor was out of state. The Senate argued that Clark still did not qualify to be seated. In 1900 Clark ran, and won, presumably legitimately. He was seated, and served a very lackluster single term (1901 - 1907), choosing not to run for re-election.

In 1909 Illinois had a long deadlock in the state legislature trying to select a new Senator. Finally a compromise candidate, William Lorimer, a Republican from Chicago, was elected, and seated. But soon after Lorimer was seated, questions arose about the election. In 1910 rumors that a legislator had received a bribe to vote for Lorimer were followed by questions - had there been others? The investigation seemed to show conclusively that Lorimer had bought votes. In 1912 he was removed from the Senate by a vote of 55 - 18 The 17th Amendment brought about the direct election of U. S. Senators because there had been too many recent cases of questionable behavior on the part of state legislators in the election of U.S. Senators.

OK, I'm not a lawyer, and I don't even play one on TV. But surely, it seems to me that the Senate could possibly be forced to seat Burris under the case law cited (Powell), then the Senate could promptly vote to remove him. None of this makes the Democratic party look particularly good. Remember, Congress - the Democratically controlled Congress - has a lower public approval rating than the current Republican President, George W. Bush. By taking the view that ANY appointment by Blagojevich will be tainted, Obama has taken what will be perceived as the high road by many voters. Too bad his own party leadership don't see the problem as clearly.

The Illinois Democrats, possibly in consultation with Harry Reid and the national party leadership, shot themselves in the foot by not moving decisively to have a special election. Because if the identity politics wing of the Democratic party tries to go to bat for Burris, it makes Obama look bad - and it also makes the whole Democratic Party look bad. Burris is NOT someone who looks good - that whole business of his trying to railroad the rape conviction against exculpatory DNA evidence while he was running for governor looks pretty bad to me. This is NOT the kind of thing the Democrats need to have swamping the internet for the next three months. Reid and Pelosi make George W. bush look like a certifiable genius.
1.2.2009 12:59am
Orson Buggeigh:
CORRECTION: Please excuse the fumble fingers. Lorimer was removed by a vote of 55 -28, not 55 - 18.

Thanks. OB
1.2.2009 1:01am
FlimFlamSam:
I don't understand why anyone cares what the Powell case says. It was pretty clearly wrongly decided.

I agree with Mr. Den Beste's view above.
1.2.2009 1:32am
subpatre (mail):
FlimFlamSam sobbed "I don't understand why anyone cares what the Powell case says. It was pretty clearly wrongly decided."

Maybe it matters because Powell v. McCormack (you really aught to read tha darned thing) was based on Constitutional grounds. A decision based on what the Constitution says, and what it means by what it says.

Thankfully the framers that wrote those parts of the Constitution left a lot of records on what they meant and intended, why they wrote what they did, and why they rejected the meaning you would prefer. That —and only that— is why you don't like the case.
1.2.2009 3:11am
pluribus:
Procedure_counts.:

Is he the winner of the election is a question the Senate can ask -- not whether the election was fair or free of corruption.

Why draw this arbitrary line? The Constitution does not do so. It says the Senate "shall be the judge of the elections." Is the Senate limited to counting the votes, but not determining whether the votes were honestly cast, or procured by bribes, or corced, or the result of the supression of opposing votes, or subject to any other defects? Your statement is conclusory.

Procedure_counts.:

That a scoundrel may be seated once in a rare occasion, is preferable to the alternative of a Senate run amok with power to exclude on criteria du jure.

Why? Why is a Senate "run amok" more dangerous than a Supreme Court "run amok"? Or a governor run amoke, as we seem to have in this case? The Senate is subject to the control of the voters, unlike the Supreme Court. If senators exercise their constitutional power as "the judge of the elections" of other senators inappropriately, the voters can appropriately reprimand them. A third of the senators are subject to legislative scrutiny every two years. What control do the voters have over the Supreme Court? And what reason is there to believe that the Senate will exercise its power arbitrarily or unreasonably? Does it have a history of doing this? When in the more than 200-year history of the Senate has it actually done this? Why do so many here repose greater confidence in the ability of nine judges of the Supreme Court to make a responsible decision than 99 senators, particularly when the decision is essentially political?
1.2.2009 7:11am
vassil_petrov (mail):
Amendment XVII

.........................


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: Provided, 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.


.........................

It follows that:

1. Since Ill. legislature may empower Ill. governor to temporarily appoint a senator, it can revoke that power, as long as that happens before the Senate has accepted the appointment. In that case the state of Illinois is not represented in the Senate, but only until a special election is held for the peaople of Illinois to elect a Senator.

2. If nor, Ill. legislature may provide for and organise an election for its senator at any given time between now and the expirary of former sen. Obama. Burris is a senator until then.
1.2.2009 7:39am
Ryan Waxx (mail):
Undecided, can't that (that there may be bribery involved) be said about any appointment at all? We can never truly be sure about any appointment.


Untrue. an appointment made by a person who is reasonably believed to have tried to sell the exact same seat mere months before isn't just "any appointment". And "truly be sure" isn't the standard of evidence necessary... if the power exists at all, there is no standard of evidence that's associated with it.

So if the power exists, the Senate is perfectly ethically justified in rejecting the appointment, and is probably ethically required to do so. I doubt however that ethics will have anything to do with weather they actually do so, and that identity politics will carry the day as usual.
1.2.2009 7:46am
calmom:
Have there been any other governors, who after having been arrested, or who were being investigated by a grand jury or a prosecutor, appointed someone to fill a Senate seat?

How the Senate acted in similar circumstances might be interesting.

What about when a Governor appoints a relative to the Senate seat? There may be no financial bribery, call it 'emotional bribery'. Just curious.
1.2.2009 8:46am
Procedure_counts:
pluribus:
Why draw this arbitrary line? The Constitution does not do so. It says the Senate "shall be the judge of the elections." Is the Senate limited to counting the votes, but not determining whether the votes were honestly cast, or procured by bribes, or corced, or the result of the supression of opposing votes, or subject to any other defects? Your statement is conclusory.
First, I believe the Constitution does draw that line. The Court in Powell (properly) strictly construed the constitutional provision at issue.

What you and others are suggesting, is unfettered discretion to reject a Senator who is otherwise "clothed with the proper credentials and possessing the constitutional qualifications." Such a provision affects the balance of power between the sovereigns, and as such is subject to the clear statement rule which as justice O'Connor noted, itself arises from the Constitution.

To hold otherwise, would allow a majority of the Senate to exclude any new member on any ground -- such as someone who doesn't believe in man-made global warning. I find no comfort in a history of restraint in using such power, particularly from a political body.

Why? Why is a Senate "run amok" more dangerous than a Supreme Court "run amok"? Or a governor run amoke, as we seem to have in this case?
All are bad, and the limits of the Constitution are what provides protection. Each has remedies and protections in both federal and state constitutions. Your expansive reading of Article I would shift power, and remove an important protection against a Senate run amok.

The Senate is subject to the control of the voters, unlike the Supreme Court.
Thank God.

If senators exercise their constitutional power as "the judge of the elections" of other senators inappropriately, the voters can appropriately reprimand them.
This argument doesn't help you. By this logic, why give the Senate the power to expel a member? Leave it up to the voters to recall the member.

particularly when the decision is essentially political?
Powell addressed this argument and rejected it. This is not a political question in any sense of the word, and your claim otherwise is ipse dixit. The people and legislature of Illinois have chosen (both by action and inaction) a system whereby the governor appoints to fill a vacant Senate seat. Blago is the governor, and no provision if Illinois law limits his abilities while he remains in office. The Senate is not authorized to judge the wisdom or integrity of that system, but only the Constitutional qualifications of the individual that system produced. Burris is the individual produced by the system chosen to be employed by the people and legislature of Illinois, and he meets the constitutional requirements. That is the end of the matter, and any flaw in the result lies in the lap of the people and legislature of Illinois. The Senate is not a parent, and does not sit in review of Illinois' actions like a parent and act to protect Illinois from herself.

Procedurally (and procedure counts) if they get a new governor in office before the SoS is forced to seal the Burris appointment, and the new governor appoints and the SoS seals the new appointment before the Senate convenes, then the Senate would be within their Constitutional sandbox to judge which of the two appointees to accept.
1.2.2009 9:48am
subpatre (mail):
Steven Den Beste writes: I think the point they're trying to make, [Amar and Chafetz] with which I agree, is that even if the Senate "unjustly" excludes Burris, there's no appeal. It's like Presidential pardons; even if those are unjust, the pardon power is absolute.

Not so. The Court says: (emphasis added)
Respondents also note that, under Art. I, § 3, the Senate has the "sole power" to try all impeachments. Respondents argue that these delegations (to "judge," to "punish," and to "try") to the Legislative Branch are explicit grants of "judicial power" to the Congress, and constitute specific exceptions [p514] to the general mandate of Art. III that the "judicial power" shall be vested in the federal courts.

We reject this contention. ... Any bar to federal courts reviewing the judgments made by the House or Senate in excluding a member arises from the allocation of powers between the two branches of the Federal Government (a question of justiciability), and not from the petitioners' failure to state a claim based on federal law.
That is from Powell. Forty years ago the Court read Amar's Slate article and discarded it.
1.2.2009 10:07am
Procedure_counts:
but in the end the rule means what the Senate chooses to interpret it to mean.
No, the final say on interpreting the Constitution lies with the Supreme Court, not with the Senate. If the Senate doesn't like it, the Senate can propose a constitutional amendment.

I notice that the Senate didn't cry any tears when the voters of several states passed term limits on their Senators, and the Court struck them all down, because the Constitution enumerates the qualifications to be a senator, and the states are not empowered to add additional criteria.

It appears that the shoe is now firmly placed on the other foot.
1.2.2009 10:14am
PEG (mail) (www):
I for one have to agree with Amar and Chafetz. The Senate is the court of last resort for deciding elections and appointments to the Senate, and that means whatever the Senate decides is a flawed appointment is a flawed appointment.

Also, as a French jurist, I wonder if/what weight is carried in US law by the adage "fraus omnia corrumpit", fraud corrupts all. Even if the appointment might formally be legal, there is little question that it is tainted by a broader, fraudulent situation.
1.2.2009 10:21am
Procedure_counts:
PEG:

What would your reaction be to this scenario: The state of Oz elects John Racist, who is a devote of racial segregation, and believes black and Jews should be exterminated, that women should be returned to being chattel, and slavery of the white underclass and foreigners be legalized. Further, he has promised to introduce bills in the Senate to do so.

The election is beyond reproach and there was no fraud, no bribery, and no impropriety. John Racist is the overwhelming choice of the state of Oz and no one disputes it.

Can the Senate refuse to seat him?
1.2.2009 10:33am
pluribus:
Procedure_counts:


What you and others are suggesting, is unfettered discretion to reject a Senator who is otherwise "clothed with the proper credentials and possessing the constitutional qualifications." Such a provision affects the balance of power between the sovereigns, and as such is subject to the clear statement rule which as justice O'Connor noted, itself arises from the Constitution. To hold otherwise, would allow a majority of the Senate to exclude any new member on any ground -- such as someone who doesn't believe in man-made global warning.

Yes, some others here seem to be making that argument. I wouldn't, because the opinions or beliefs of a would-be senator do not seem to me to relate to his/her "elections," "returns," or "qualifications." I believe it would be unacceptable to refuse to seat a senator because his/her views seemed outrageous.

This is not the situation with Burris. His appointment itself is tainted with corruption. His views have not been questioned. He was appointed by a corrupt governor who spoke clearly and frequently of his willingness to accept a bribe for appointing a senator. The governor is now being investigated for impeachment by his own legislature for this very reason. He has been arrested by federal authorities and now is out on bail. The process whereby Burris was appointed has been called into serious question. I realize that my argument doesn't seem to comport with Powell, and it leads me to question whether Powell was properly decided. Is that unheard of in our constitutional system?
1.2.2009 11:30am
BillW:
Connecticut Lawyer: I tend to agree with Prof. Volokh on the legal merits. I guess we'll find out the answer in about two years: that's how long it will take for this case to wind its way up to the Supreme Court.

At which time the question will become moot, when Illinois elects a new senator.
1.2.2009 11:33am
Public_Defender (mail):
I so far out of my area of expertise that I should say, IANAL, but here it goes.

Might it be that the courts would not follow the Powell precedent, or would at least avoid it, because Congress was pretty clearly denying Powell a seat based on racism, not corruption? A lot of legal concepts were pushed because Southern racists abused them to try to maintain racial segregation.
1.2.2009 12:21pm
Procedure_counts:
pluribus:

I believe it would be unacceptable to refuse to seat a senator because his/her views seemed outrageous.
OK. We can agree on that. I also believe that the power of the Senate in this regard is no different whether the incoming senator is elected or appointed.

I realize that my argument doesn't seem to comport with Powell, and it leads me to question whether Powell was properly decided.
I'm glad that we read Powell the same way, that it strongly implies that Burris would have to be seated. How much of your dissatisfaction with Powell is outcome based -- i.e. based on a desire there to be a way to exclude Burris? If Powell is wrong legally, then where is the flaw?

For the federal sovereign to have the power to deny a sovereign state's legally chose representative to the federal legislature, is a power that is best strictly construed and limited.

For Powell to reach a different conclusion, it seems that at the very least, the interpretation of Art. I must change to give a broad interpretation to the power of the Senate in this regard. However, such an expansive reading would increase the power of the Senate at the expense of the power of the states, and thus must be strictly construed. A corrupt governor is still the governor, and nothing diminishes the legal validity of any of his actions. How much "corruption" is enough to refuse to seat a senator? A campaign that used illegal prerecorded calls? A campaign that used race-baiting? A campaign that spread lies with push-polls? A campaign that promised "access" to large donors? A campaign that accepted money from foreign entities? A campaign that paid the candidate's mistress a million dollars for no work?

To me, the strength of a constitutional system is how firmly (or weakly) the constitution is followed when it produces unpopular results. A corollary to this principle is that there sometimes will be unpopular results. This is one of those times.
1.2.2009 12:28pm
subpatre (mail):
pluribus should have written more precisely:
This is not the situation with Burris. His appointment itself is allegedly tainted with alleged corruption. His views have not been questioned. He was appointed by a allegedly corrupt governor who allegedly spoke clearly and frequently of his alleged willingness to accept a alleged bribe for appointing a senator. The governor is now being investigated for impeachment by his own legislature for this very reason remains the lawful executive of the state. He has been arrested by federal authorities and now is out on bail. The process whereby Burris was appointed has been called into serious question by anonymous poster 'pluribus' is in full compliance with all state and federal law.
There; fixed it for you.

Public_Defender wrote: "I so far out of my area of expertise that I should say, IANAL, but here it goes. Might it be that the courts would not follow the Powell precedent, or would at least avoid it, because Congress was pretty clearly denying Powell a seat based on racism, not corruption?"

It is far out of your expertise, since the case was not about had no hint of racism. None of the Courts' documentation hint of racism, nor do the Wiki articles on the suit or Powell himself. Powell was denied a seat for clear misconduct when he refused to pay a judgment ordered by a New York court, misappropriated congressional travel funds, and illegally paid his wife a congressional staff salary for work she had not done. The Powell case was about corruption!
1.2.2009 12:49pm
MarkField (mail):

For the federal sovereign to have the power to deny a sovereign state's legally chose representative to the federal legislature, is a power that is best strictly construed and limited.


I'm leaning towards your view of this, but this strikes me as doubly wrong. Neither the federal government nor the states are "sovereign" except in a colloquial sense. In a republic, the people are sovereign.

I think this has particular force in this debate. Calling states "sovereign" tends to assume the conclusion. If Art. I does allow the Senate complete control over its membership, then the states are bound by that under the Supremacy Clause. Thus, we can't use "sovereign state" as a step in any reasoning process.

To me, the fundamental point should be the right of the people of IL to be represented in the Senate. I don't care much for the idea that the Senate could deprive them of that fundamental right of representation in the absence of good cause.
1.2.2009 12:53pm
MarkField (mail):

It is far out of your expertise, since the case was not about had no hint of racism. None of the Courts' documentation hint of racism, nor do the Wiki articles on the suit or Powell himself. Powell was denied a seat for clear misconduct when he refused to pay a judgment ordered by a New York court, misappropriated congressional travel funds, and illegally paid his wife a congressional staff salary for work she had not done. The Powell case was about corruption!


This is true only in a technical sense. Race was a big issue in the Powell case, as anyone alive at the time was aware. You can't just look at the charges against Powell, you need to consider the larger context.
1.2.2009 12:56pm
vassil_petrov (mail):
I for one have to agree with Amar and Chafetz. The Senate is the court of last resort for deciding elections and appointments to the Senate, and that means whatever the Senate decides is a flawed appointment is a flawed appointment.

This is my understanding of art. 1, sec. 5 of US Constitution, limited as it is.
Plus, the universal parliamentary practise up until 20 century was for the legislative body to decide disputed elections and qualifications of its members, not ordinary or constitutional or special election courts.
But US Supreme Court has interpreted that clause differently, as not precluding judicial review, in the Powell case.
1.2.2009 12:58pm
Procedure_counts:
Neither the federal government nor the states are "sovereign" except in a colloquial sense.
It is a basic premise of the law that they are indeed sovereigns in the legal sense. Perhaps it may appear as an anachronism or colloquialism, but indeed it is a legal maxim in full force today.

For example, if possession of cocaine violates federal law, and the state's law, you can be prosecuted, separately, by the different sovereigns, and not run afoul of double jeopardy.

subpatre:
The Powell case was about corruption!
To be fair, it was about corruption while in office... not corruption in the process of obtaining the seat. And the Court noted the rules of the House did not generally permit bad acts prior to the current congress to be considered in ejecting a member.
1.2.2009 1:01pm
MarkField (mail):

It is a basic premise of the law that they are indeed sovereigns in the legal sense.


Yes, they are called "sovereign" in some senses. But in the case we're discussing the term makes no sense. As I said, the Constitution is the supreme law of the land; calling a state "sovereign" doesn't help the analyis because if the Constitution is clear, no residual "sovereignty" can prevent its application to the state.
1.2.2009 1:26pm
Procedure_counts:
States are indeed sovereigns, who have surrendered some portions of their sovereignty. They still retain all that was not surrendered. If you doubt this, look at the legions of caselaw about sovereign immunity.

Constitutions are in derogation of sovereignty, and when the residual sovereignty is affected, constitutions are strictly construed.
1.2.2009 1:39pm
FlimFlamSam:
subpatre,

It seems unusual to say this, but your references to Powell are a naked (and unpersuasive) appeal to authority. The last time I checked, stare decisis is not a limitation on blog comments. What the Supreme Court said in Powell is right or wrong, but it is not right simply because the Supreme Court said it.

I think the correct result here is that Burriss is seated. But I think if the Senate wrongly excludes him, there should be no appeal to any judicial bodies. That is what the Framers intended, in my view.
1.2.2009 1:50pm
Bruce Hayden (mail) (www):
That a scoundrel may be seated once in a rare occasion, is preferable to the alternative of a Senate run amok with power to exclude on criteria du jure.
Why? Why is a Senate "run amok" more dangerous than a Supreme Court "run amok"? Or a governor run amoke, as we seem to have in this case? The Senate is subject to the control of the voters, unlike the Supreme Court. If senators exercise their constitutional power as "the judge of the elections" of other senators inappropriately, the voters can appropriately reprimand them. A third of the senators are subject to legislative scrutiny every two years. What control do the voters have over the Supreme Court? And what reason is there to believe that the Senate will exercise its power arbitrarily or unreasonably? Does it have a history of doing this? When in the more than 200-year history of the Senate has it actually done this? Why do so many here repose greater confidence in the ability of nine judges of the Supreme Court to make a responsible decision than 99 senators, particularly when the decision is essentially political?
Part of the danger here is as suggested above, that Congress will start rejecting based on criteria du jure. What is to keep the Democrats in the Senate from seating Republicans based on the theory that the process must have been corrupt for a Republican to be elected? There are plenty of shenanigans that are perfectly feasible, and, indeed, somewhat likely, given the overt politicization of this branch of government.

Congress can impeach and remove the Executive and members of the Judicial branch for, among other things, corruption. But what is there to prevent the Legislative Branch from becoming (even more) corrupt? The only thing preventing this are elections every other year. But this check effectively disappears if either house can refuse to seat newly elected (or appointed) members for reasons other than legal qualifications.
1.2.2009 1:53pm
Mike 'Ralph' Smith:

I for one have to agree with Amar and Chafetz. The Senate is the court of last resort for deciding elections and appointments to the Senate, and that means whatever the Senate decides is a flawed appointment is a flawed appointment.


Here's the problem with that view--it opens the door to blatant misuse of the power to exclude members. For example, assume that the senate has 51 Democrats and 49 Republicans. The 51 Democrats exclude every one of the Republicans. But, only after holding hearings and making findings of fact that each and every one of their elections was flawed. There's no real evidence of any fraud, however, and everyone knows that the findings are simply a sham to grab power. Is their no court review simply because the Senators used the magic language of flawed elections rather than stating their real motives?
1.2.2009 1:59pm
FlimFlamSam:
Mike 'Ralph' Smith,

The Senate did not behave the way you suggest in the many, many years before Powell. There is no reason to expect it will operate that way now. And if it did, the bare majority who acted in such a fashion would be tossed in the next election cycles.
1.2.2009 2:07pm
Procedure_counts:
But I think if the Senate wrongly excludes him, there should be no appeal to any judicial bodies.
I'm guessing that the Dems are smart enough that, even if the Illinois SoS is forced to seal the appointment, when Blago is removed, the next governor will make another appointment and the SoS will seal it. If that occurs, even under Powell, the Court will have no role.

So time is against Burris. The Illinois Supreme Court could even help the Dems by sitting on the mandamus action as long as possible.

I anticipate the Senate will refer it to committee, and stall. Burris will try to jump the gun, perhaps even arguing futility, and the courts will (properly) abstain till the Senate process is finished (or at least give that process a reasonable amount of time).... that kind of deference they will give the Senate. All of this will give the Illinois Dems time to achieve the new appointment and SoS seal, which will give the Senate the solid legal footing to do what they want, by simply determining that the second appointment/seal is the one they are going to accept.
1.2.2009 2:12pm
MarkField (mail):

States are indeed sovereigns, who have surrendered some portions of their sovereignty. They still retain all that was not surrendered. If you doubt this, look at the legions of caselaw about sovereign immunity.

Constitutions are in derogation of sovereignty, and when the residual sovereignty is affected, constitutions are strictly construed.


No, this is wrong in a very fundamental way. Here's James Wilson in the PA ratifying convention:

“There necessarily exists in every government a power from which there is no appeal; and which, for that reason, may be termed supreme, absolute, and uncontrollable [meaning “sovereignty”]. Sir William Blackstone will tell you that in Britain the power is lodged in the British Parliament; that the parliament may alter the form of the government; and that its power is absolute and without control. The idea of a constitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain. …. The British constitution is just what the British parliament pleases. …

To control the power and conduct of the legislature, by an overruling constitution, was an improvement in the science and practice of government reserved to the American States.

Perhaps some politician who has not considered, with sufficient accuracy, our political systems, would answer that, in our governments, the supreme power was vested in the constitutions. This opinion approaches a step nearer to the truth, but does not reach it. The truth is that in our governments the supreme, absolute, and uncontrollable power [sovereignty] remains in the People. As our constitutions are superior to our legislatures, so the people are superior to our constitutions…. The consequence is that the people may change the constitutions whenever and however they please.”
1.2.2009 2:13pm
man from mars:
Mike Smith -

No, the Senate does not have the power to "decide appointments" to the Senate. It can only judge "elections, qualifications and returns", art I, sec. 5. An appointment is not an election, a qualification, or a return. So it cannot be judged. The constant reiteration of what is almost a meme by now - that the Senate can judge appointments (because it seems like a good idea I guess?) - have nothing to do with the text.

The seventeenth amendment makes this even clearer: it gave Governors the power to appoint Senators in certain situations, one of which was met in this case, but did not correspondingly increase the power of the Senate to judge those appointments.

Obviously, as a matter of pragmatism, the Senate can and will block the Burris appointment, by delaying or forestalling judicial review.

Nevertheless, as a matter of constitutional law, the Senate cannot legally (although it can pragmatically) block the appointment while adhering to the Constitution. The words of the Constitution don't get any simpler or clearer than they do in Article 1, Section 5 and the 17th Amendment.

The arguments of Amar et al. just reiterate every rationalization for a power-grab in history: because exercise of power is desirable, the legal checks on that power can be disregarded.

The main effect of the acquiescence in the misreading of Article 1, Section 5 is not that Burris will not serve when he should. This has little legal significance.

To the contrary, the danger is that if the populace accepts such a flagrant misreading of such a clear phrase in the Constitution, it will necessarily accept just about any other interpretation of the fuzzier constraints on legislative power as well. If "return" is read to mean "appointment" then none of the protections of Art. 1 section 8 or of the bill of rights have meaning either.
1.2.2009 2:31pm
Procedure_counts:
MarkField:

You confuse "sovereignty" with "absolute sovereignty." The "People" have no power to enact law or to govern. They elect the government of the state, and that government wields the power, not because the people gave it to the government, but because the state is a sovereign and the sovereign has that power. That the people have control, via elections, to determine who sits in the government is not itself sovereignty any more than the church official or committee that has the ability to determine who to crown king in a questioned succession has sovereignty.

King John was sovereign. He surrenderd some elements of sovereignty at Runnymede. The Magna Carta gained it's power over the sovereign only because the sovereign granted it such. King John was still sovereign, just not possessive of "absolute sovereignty." In all matters not surrendered to the restrictions of the Magna Carta, King John still was absolute sovereign.

Prior to the Articles of Confederation and the Constitution, the states were indeed sovereigns in every sense of the word, and pretty much absolute sovereigns at that. When they ratified the Constitution, they surrendered some portions of that sovereignty, but retained all others. Ratification of various amendments have also chipped away at areas of sovereignty. All portions of the Constitution do not extend to the states (such as the 7th amendment).

States are indeed sovereigns of their territory, except with respect to those areas which the state ceded through the federal, and their state constitution. I once again, point you to the legions of law regarding sovereign immunity in your state.
1.2.2009 2:35pm
man from mars:
It's interesting how similar this process is the legalistic arguments deployed (and the popular acceptance of those arguments) against Lori Drew and Jeff Skilling.

In the Drew case, media portrayals inflamed the populace against Drew, and a judge eventually accepted a countertextual reading of the CFAA in order to convict her.

In the Skilling case, media portrayals inflamed the populace against Skilling, and a judge eventually accepted a countertextual reading of the "theft of honest services" statute in order to convict him.

In the Blagojevic case, media portrayals inflamed the populace against Blagojevic, leading to countertextual readings of Article 1, Section 5 of the Constitution that will likely result in his inability to exercise his appointment power.

But the Blagojevic situation is much more egregious than the other two. Few people know or should be expected to know the text of the CFAA or of the theft of honest services statutes. But educated laymen should be familiar with, or at least have read, the Constitution, and so the tendentious reading of art. 1 sec. 5 is more blatant.
1.2.2009 2:50pm
Procedure_counts:
Nevertheless, as a matter of constitutional law, the Senate cannot legally (although it can pragmatically) block the appointment while adhering to the Constitution.
Well said.

Now consider the hue and cry to "fix" the situation in Illinois, such as calls for automatic suspensions of certain Governor's authorities upon arrest, etc. Some have proposed changes to support (or prevent) the Senate's anticipated actions.

I don't buy any of it. While "the Senate cannot legally (although it can pragmatically) block the appointment" this is not a justification to tinker with the system. Time can't be legislated, and Burris will run out of time. This is one situation where pursuit of perfection is the enemy of functionality.
1.2.2009 3:04pm
subpatre (mail):
FlimFlamSam said "It seems unusual to say this, but your references to Powell are a naked (and unpersuasive) appeal to authority. The last time I checked, stare decisis is not a limitation on blog comments. What the Supreme Court said in Powell is right or wrong, but it is not right simply because the Supreme Court said it."

Almost nothing is a limitation on blog comments —only the blog owner limits comments— but stare decisis is a limitation to legal decisions. Rejecting the legal basis is a tacit admission your comments are crybaby whinging, unrelated to reality.

Powell is stare decisis precedent ... deal with it. And while you are at it, deal with the fact Powell was well founded; based on not just the Constitution, but on the Framers' explicit consideration, discussion, and votes ('No') on whether the American Houses could or should qualify its own members.

MarkField said, "Race was a big issue in the Powell case, as anyone alive at the time was aware. You can't just look at the charges against Powell, you need to consider the larger context."

Looking back at it, you cannot say that. At the time —I was in Harlem around then— racism was 'an issue'; but in the end facts say otherwise. [Heck, at the time everything was about racism!] Powell was an effective legislator due to cooperation by fellow members on his legislation, and he was remarkably effective.

Like others, the position (power, fame, glory, etc) changed him. Powell became arrogant, refused to pay bills and judgements, lived in the Caribean, etc. The House action was an attempt to rein him in, covertly at first and bolder as he defied the attempts. He was shrewd and forced their hand on the seating. That Justice was never called is a proof Powell was well-liked and respected; a lesser man would have been expelled immediately.
1.2.2009 3:05pm
Jiffy:
MFM states:


An appointment is not an election, a qualification, or a return.


What is the basis for your certainty that the terms "election" and "return" exclude appointment? The dictionaries I've consulted generally define "elect" to mean "to choose," perhaps especially, but not exclusively, by voting. Why would that term not authorize the Senate to be "the judge" of a governor's choice to fill a Senate vacancy?

Similarly, Amar and Chafetz argue that


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.


I can't judge that claim, but what is wrong with it?
1.2.2009 3:06pm
Awesome-O:
stare decisis is a limitation to legal decisions. Rejecting the legal basis is a tacit admission your comments are crybaby whinging, unrelated to reality.

That's a little harsh, don't you think?

The Supreme Court has made incorrect decisions before. They continue to do it every term. Powell may be one of those. How about arguing on the merits, rather than going to "'shut up!' he explained," and all that?
1.2.2009 3:34pm
Oren:

Part of the danger here is as suggested above, that Congress will start rejecting based on criteria du jure. What is to keep the Democrats in the Senate from seating Republicans based on the theory that the process must have been corrupt for a Republican to be elected?

You obviously have no idea how the Senate actually works in day-to-day business. If that happened, the party on the losing end would simply halt the Senate until their member is seated. Even a 2/3rds majority can't keep things moving slowly when virtually every important floor motion is passed by unanimous consent.
1.2.2009 4:15pm
MarkField (mail):

You confuse "sovereignty" with "absolute sovereignty."


Sovereignty is an absolute. In Wilson's terms, it's the "supreme, absolute and uncontrollable power". What you're talking about is a colloquialism picked up from prior usage. A king might have been "sovereign" (at least in theory), but in a republic only the people are. This wasn't controversial at the Founding; here are a few more examples:

John Adams, writing in his 1787 book, Defence of the Constitutions of Government of the United States: “Our people are undoubtedly sovereign….”

Charles Cotesworth Pinckney, speaking at the South Carolina ratification convention on May 14, 1788:

“In every government there necessarily exists a power from which there is no appeal, and which for that reason may be termed absolute and uncontrollable.

The person or assembly in whom this power resides is called the sovereign or supreme power of the state. With us, the Sovereignty of the union is in the People.”

Those opposed to the Constitution agreed. An anonymous anti-Federalist writing as “Cato” on October 10, 1787: “In democratic republics the people collectively are considered as the sovereign – all legislative, judicial, and executive power is inherent in and derived from them.”

James Madison speaking on the floor of the House of Representatives on March 8, 1796: “On some points there could be no difference of opinion, and there need not, consequently, be any discussion. All are agreed that the sovereignty resides in the people; that the Constitution, as the expression of their will, is the guide and the rule to the government....”


Prior to the Articles of Confederation and the Constitution, the states were indeed sovereigns in every sense of the word, and pretty much absolute sovereigns at that. When they ratified the Constitution, they surrendered some portions of that sovereignty, but retained all others.


The states did NOT ratify the Constitution (see McCulloch v. Maryland). The people did, and that was precisely because the people, as sovereigns, were the only ones who could. That's why the Preamble begins "We the People..." and why Art. VII submits the Constitution to the people for ratification.

The anti-Federalists challenged both the language of the Preamble and the theory behind it. At the Virginia Ratifying Convention, Patrick Henry demanded “what right had they to say, We, the People. My political curiosity … leads me to ask, who authorized them to speak the language of We, the People, instead of We, the States? States are the characteristics, and the soul of a confederation.” The debate at the Constitutional Convention (July 23, 1787) explains that they rejected Henry’s theory because the proper source of constitutional authority was the People:

“Mr. ELSEWORTH moved that [the Constitution] be referred to the Legislatures of the States for ratification. Mr. PATTERSON seconded the motion.

Col. MASON considered a reference of the plan to the authority of the people as one of the most important and essential of the Resolutions. The Legislatures have no power to ratify it. … Whither then must we resort? To the people with whom all power remains that has not been given up in the Constitutions derived from them. It was of great moment, he observed, that this doctrine should be cherished as the basis of free Government. … There was a remaining consideration of some weight. In some of the States the Governments were not derived from the clear and undisputed authority of the people. This was the case in Virginia. Some of the best and wisest citizens considered the Constitution as established by an assumed authority. A National Constitution derived from such a source would be exposed to the severest criticisms.


Mr. MADISON … considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution. … In point of political operation, there were two important distinctions in favor of the latter. 1. A law violating a treaty … might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null and void. 2. The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties, frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact has always been understood to exclude such an interpretation.”

Alexander Hamilton re-emphasized the importance of ratification by the People in Federalist 22:

“It has not a little contributed to the infirmities of the existing federal system [i.e., the Articles of Confederation], that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the [outrageous] doctrine of a right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a PARTY to a COMPACT has a right to revoke that COMPACT, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.”
1.2.2009 4:43pm
Procedure_counts:
Oren:

True, w/r/t the two major parties. But what happens when it is an attempted exclusion for something that does not break on political party lines? Impracticability of the offense against them is no way to protect constitutional provisions to ensure separation of powers.

To some degree, I think many of the comments here (mine included) are a bit guilty of conjuring Mencken's hobgoblins to support out respective interpretations. But in the end, it is a question of constitutional interpretation. It affects a state's representation in the Senate and thus the balance of power, and should be strictly construed, as the Court did in Powell. As Justice Powell noted, the "constitutionally mandated balance of power between the States and the Federal Government was adopted by the Framers to ensure the protection of our fundamental liberties."

See New York v. United States, 505 U.S. 144, 181 (1992) ("Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.") (quoting Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)).

That principle is, IMHO, much more important than the occasional risk of seating a scoundrel, particularly in light of the fact that if the scoundrel does act improperly, the Senate can remove him.
1.2.2009 4:48pm
Procedure_counts:
MarkField:

You'd do better to cite caselaw rather than populist propaganda.

The Secretary of State does not count "people" when certifying an amendment to the Constitution, nor did the federal government count the "people" voting for ratification. Each state had one vote, and a supermajority of STATES, not PEOPLE, is what counts. Indeed, you could have a majority of PEOPLE vote against ratification, yet the supermajority could still be met.

Since you are fond of McCulloch v. Maryland:

"The assent of the States in their sovereign capacity is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance, and could not be negatived, by the State Governments. The Constitution, when thus adopted, was of complete obligation, and bound the State sovereignties."

They are still sovereigns, just not absolute sovereigns.
1.2.2009 5:00pm
Oren:


That principle is, IMHO, much more important than the occasional risk of seating a scoundrel, particularly in light of the fact that if the scoundrel does act improperly, the Senate can remove him.

Respectfully dissent and disagree with your characterization. My issue with Powell, which I admit, remains binding as a matter of stare decisis, is not that it allows a scoundrel to be seated (that seems to happen quite frequently anyway) but that it deprives the Senate of power to mind its own house. The houses of Congress are parliamentary bodies (United States v. Ballin), not some inferior bodies subject to policing by Art III courts.

For this same reason, I believe that the Senate can expel Burriss by 2/3rds vote, even if Senate rules nominally forbid expulsion for acts before seating. Likewise, it can convict a duly-impeached President even if he is not, in objective fact, guilty of high crimes &misdemeanors. Those powers are allocated solely to the Senate, to be used at their discretion.
1.2.2009 5:22pm
pluribus:
Mark Field is right about sovereignty. When arguing a point of constitutional law, it is helpful to look at the commentaries of the framers. I include Marshall in this group, since he was a delegate to the Virginia ratifying convention.
1.2.2009 5:25pm
MarkField (mail):

You'd do better to cite caselaw rather than populist propaganda.


I don't think of Madison, Hamilton and Marshall as "populist propagandists", nor do I necessarily consider case authority more controlling than their views. YMMV. In any event, I did cite a case (McCulloch); you haven't. In fact, you haven't cited any authority at all except the general principle of "sovereign" immunity which involves a loose usage carried over from the days of kingship.


Since you are fond of McCulloch v. Maryland:

"The assent of the States in their sovereign capacity is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance, and could not be negatived, by the State Governments. The Constitution, when thus adopted, was of complete obligation, and bound the State sovereignties."


Yes, this is the passage which proves my point. I'm not sure why you'd cite to it.


They are still sovereigns, just not absolute sovereigns.


No -- states, like the federal government, have powers delegated to them by their sovereigns, We the People. Whether it's Jefferson in the Declaration ("the right of the people to alter or abolish it") or Lincoln at Gettysburg ("government of, by, and for the people") or the Founders I quoted above, the net result is the same.

Look, I agree with you about Burris (at least I do for now; I keep going back and forth on this). But the interest we're trying to protect is that of the people of IL, not that of the corporate state per se.
1.2.2009 5:59pm
Forman:
"'We the People'? Have They said, 'we the states'? Have they made a proposal of a compact between States?

If they had, this would be a confederation. It [the Constitution] is otherwise, most clearly a consolidated government. The question turns, Sir, on that poor little thing -- the expression 'We the People,' instead of the States of America."

Patrick Henry. Virginia ratifying convention. June 5, 1788.
1.2.2009 6:17pm
Procedure_counts:
but that it deprives the Senate of power to mind its own house.

I don't see it as depriving them of power to mind their house. They can, as you say, expel him. While their rules seem to exclude pre-seating behavior, those rules can be changed, or suspended, by the Senate at will. Seat him, suspend the rules, then vote to expel him 10 seconds later... and he gets to vote with the other 99. I have no problem, constitutionally, with that procedure.

The houses of Congress are parliamentary bodies (United States v. Ballin), not some inferior bodies subject to policing by Art III courts.
Of course. But they are limited by and subject to the Constitution, and if a justiciable case and petitioner with standing comes forward, the Court is the final arbiter of Constitutional interpretation. What do you think is the remedy for a Senate that were to refuse to seat a properly elected/appointed, scandal-free Senator-elect?

I'm not so sure your phrase "mind their house" is applicable. As the Powell opinion notes, several "house mindings" in Parliament on dubious grounds were abjured by later Parliaments. It is not far-fetched that the framers, aware of inappropriate use of "house minding" intended to limit the power in the exact way that Powell court held.

I believe that the Senate can expel Burriss by 2/3rds vote, even if Senate rules nominally forbid expulsion for acts before seating. Likewise, it can convict a duly-impeached President even if he is not, in objective fact, guilty of high crimes &misdemeanors. Those powers are allocated solely to the Senate, to be used at their discretion.
Agree 100%.

pluribus:
When arguing a point of constitutional law, it is helpful to look at the commentaries of the framers.
Of course. But whether states are "sovereigns" in the law is not such an issue.
1.2.2009 6:18pm
Procedure_counts:
MarkField:

I'll just agree to disagree -- "sovereign" as a term of art in the law is like "actual malice" in public-person libel case -- the term of art in the law has a disconnect to the common usage of the term. I've litigated constitutional claims against the state "sovereign" and believe me, the guy in the black robe knows exactly who that is.
1.2.2009 6:36pm
subpatre (mail):
Oren writes, “My issue with Powell, which I admit, remains binding as a matter of stare decisis, is ... that it deprives the Senate of power to mind its own house. The houses of Congress are parliamentary bodies (United States v. Ballin), not some inferior bodies subject to policing by Art III courts.

The Senate and House never had the power you envision:
On August 10, the Convention considered the Committee of Detail's proposal that the:
Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient.
... James Madison urged its rejection, stating that the proposal would vest
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 [p534] 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.
... In view of what followed Madison's speech, it appears that, on this critical day, the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the "indisputable right [of the people] to return whom they thought proper" to the legislature.

... Hamilton's reply to the anti-federalist charge that the new Constitution favored the wealthy and well born:
The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.
The Federalist Papers 371 (Mentor ed.1961). (Emphasis in last sentence added.)

Powell is well grounded.
1.2.2009 7:04pm
pluribus:
Procedure_counts:

I don't see it as depriving them of power to mind their house. They can, as you say, expel him. While their rules seem to exclude pre-seating behavior, those rules can be changed, or suspended, by the Senate at will. Seat him, suspend the rules, then vote to expel him 10 seconds later... and he gets to vote with the other 99. I have no problem, constitutionally, with that procedure.

Why is it dangerous to permit the Senate to refuse to seat a would-be member but acceptable to permit the Senate ten seconds later to expel him? I'm looking for some principled difference, not merely that the two clauses are interpreted differently, one so that the Supreme Court can second-guess the Senate when it denies a seat (see Powell) and the other that the Supreme Court can't second-guess the Senate when it expels.

For whatever it's worth, I am also wavering on the constitutional issue here but would appreciate further elucidation.
1.2.2009 7:59pm
man from mars:

MFM states:


An appointment is not an election, a qualification, or a return.



What is the basis for your certainty that the terms "election" and "return" exclude appointment? The dictionaries I've consulted generally define "elect" to mean "to choose," perhaps especially, but not exclusively, by voting. Why would that term not authorize the Senate to be "the judge" of a governor's choice to fill a Senate vacancy?


Similarly, Amar and Chafetz argue that


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.



I can't judge that claim, but what is wrong with it?


I will address your two questions, first as to Elections and then as to Returns.

Elections
As to Elections, this reading is even too strained for Amar. In his Slate piece he clearly distinguishes between "elected" and "appointed" senators, as when he says "what is true of elected Senators is equally true of appointed Senators." Had Amar believed an appointed Senator was an elected Senator, his statement would not have made sense. In any case, all the other uses of "Elections" in the Constitution clearly refer to the usual and customary meaning: a vote among a plurality of voters. For example "shall issue Writs of Election" in art 1. Sec. 2; "first Election" in art 1. Sec. 3; "Times, Places and Manner of holding Elections" in art. 1 Sec. 4; "the right to vote at any election" in amendment 14 sec 2; "State shall issue writs of election" in 17th amendment (which is then followed by a distinct procedure for "appointments") and so on.

Returns
The definition of "Return" ferreted out by Amar, a "report of an appointment", could not have been intended by the Framers because there were no appointed Senators when Article 1, Section 5 was ratified. Even so, the definition of "Return" you quoted is about reports of an appointment, not the appointment itself. If the Senate wants to argue that the report of the appointment was somehow invalid, it might have a case, but it wants to argue the appointment itself is invalid, which is ultra vires.

But this argument misses the point. Nobody believes the Senate had some concern about the "report" or "return" of the appointment; or that Burris did not have the "qualifications" or that the Senate actually believes an "Appointment" is actually an "Election." Clearly, the Senate first determined they did not want to seat a Senator appointed to a highly unpopular governor under indictment, and only then looked for Constitutional justifications to do what they wanted. And people like Amar can always find some dictionary definition which, wrenched out of context, delays court intervention long enough for the Senate to get its way. (He used the same tactic to argue "Commerce" meant non-economic activity, by selecting a rare definition, so he could get where he wanted, more power to the government and more plaudits to himself).

But this is not how the Senate is supposed to proceed. Its first duty is to uphold the best reading of the Constitution - especially where it is supposed to act as "judge," which is the rule Art 1. Sec. 5 uses. Election means the same as it does everywhere else: a vote. A "Return" is not an "Appointment" and neither is an Election. Instead of this simple reading, the Senate (and Amar) engage in a result-oriented reading designed to expand Senate power and overturn pellucid Constitutional language.

And as I said, if "Election" can mean "Appointment" and "Returns" can mean "Appointment" too, then, well then "free speech" and "due process" and "necessary and proper" don't mean anything either.
1.2.2009 8:15pm
Procedure_counts:
Why is it dangerous to permit the Senate to refuse to seat a would-be member but acceptable to permit the Senate ten seconds later to expel him?
I never said that both were not dangerous, or undesirable. The Constitution simply places restrictions on the former, but not on the latter. The difference is not one of principle, but is instead textual. It would have been nice if the Constitution spoke to both procedures to prevent the 10-second term, but it didn't. The only protection in the Constitution's text against the 10-second term is the 2/3 supermajority necessary to expel.
1.2.2009 8:28pm
Procedure_counts:
man from mars:
The definition of "Return" ferreted out by Amar, a "report of an appointment", could not have been intended by the Framers because there were no appointed Senators when Article 1, Section 5 was ratified.
Assuming this is so, should not Section 5 be read today to be harmonized with the 17th Amendment, since the latter specifically addresses the same subject matter?

Suppose the 17th Amendment, instead of direct election and appointments by governors, did away with elections entirely and implemented a lottery for Senate seats. That removes the ambiguity of what a "return" is. Can the Senate conduct any inquiry to "judge" someone showing up to be sworn in as a result of the lottery in his state?

Given that Powell seems to limit the Senate's inquiry to age, citizenship, and residency, along with whether the prospective Senator has all his papers in order to prove he is the chosen one from his state, if the Senate can't "judge" an "appointed" Senator, could an appointed senator be under 30 years of age and the Senate would have to accept him? That seems to be the logical conclusion to your argument.
1.2.2009 8:42pm
subpatre (mail):
Pluribus asks,“Why is it dangerous to permit the Senate to refuse to seat a would-be member but acceptable to permit the Senate ten seconds later to expel him?

The bar is higher: refusal to seat is a quorum majority, expulsion must be 2/3 of all members. It is all right there in the opinion, for those bothered to read it.
“One other decision made the same day is very important to determining the meaning of Art. I, § 5. When the delegates reached the Committee of Detail's proposal to empower each House to expel its members, Madison
observed that the right of expulsion . . . was too important to be exercised by a bare majority of a quorum, and, in emergencies, [one] faction might be dangerously abused.
He therefore moved that "with the concurrence of two-thirds" be inserted. With the exception of one State, whose delegation was divided, the motion was unanimously approved without debate, although Gouverneur Morris noted his opposition.”
1.2.2009 10:25pm
FlimFlamSam:
subpatre,

You wrote:

[S]tare decisis is a limitation to legal decisions. Rejecting the legal basis is a tacit admission your comments are crybaby whinging, unrelated to reality.

Haha, well I'll leave it to the rest of the posters to determine how persuasive your argument ("The Supreme Court said it. STFU!!!") actually is.
1.2.2009 11:51pm
man from mars:
Procedure_counts,

Re your question about returns: as I said above, even if a return is a report of an appointment, it is not an appointment. Judging a "return" just means judging the report of the appointment.

As to your age question, yes the Senate can reject an appointee on the basis of age, because age is a constitutional "qualification" for serving in the Senate. The power to judge age is thus expressly granted as part of the power to judge "Qualifications."
1.3.2009 1:36pm
Oren:
subpatre, if we accept your reasoning for the time being, can the Senate even expel Burris (by 2/3rds vote) even if Senate rules nominally forbid such a thing?
1.3.2009 3:28pm
Parenthetical:
Procedure_counts:

To be fair, it was about corruption while in office... not corruption in the process of obtaining the seat. And the Court noted the rules of the House did not generally permit bad acts prior to the current congress to be considered in ejecting a member.

That's the critical distinction. I don't read Powell so broadly as to strip the Senate of power to investigate the propriety of an election. The Powell court was well aware of Reed v. County Com'rs of Delaware County, PA and Barry v. United States ex rel. Cunningham and apparently accepted those as settled precedents.

Both cases stemmed from the Senate's investigation of allegations of fraud/corruption in the nomination and election of William S. Vare. It is undisputed that Vare was "qualified" (age, residency, etc.) and possessed a certificate of election. Nonetheless, the Senate refused to seat Vare pending an investigation. These two cases, on their faces, were challenges to the Senate's power to compel testimony and evidence necessary to the investigation. In adjudicating those questions, the court necessarily reached the Senate's power to investigate the process by which a senator was elected:

It sufficiently appears from the foregoing that the inquiry in which the Senate was engaged, and in respect of which it required the arrest and production of Cunningham, was within its constitutional authority.

Cunningham, at 614.

Certainly, all of these cases allow the court to entertain whether Congress’ use of the Art. I, 5 was permissible.

But, the cases involving the Senate's refusal to seat Vare accepted with precious little comment that the Senate could investigate the election process. By implication, one would concede that the outcome of that investigation might lead to rejection of the elected Senator.

Whether the Art. I, 5 power also encompasses an appointment, rather than an election, may be a separate question. The Senate has certainly investigated appointments before. I’m not aware of any case that reviewed those proceedings.

Obviously, there are commenters here that possess absolute certainty that the Senate has no power to judge an executive appointment.

Setting aside whether the power to judge an "election" encompasses an executive appointment, I think the power to judge a "return" necessarily includes the propriety of the certificate of appointment. Riddick makes no substantial distinction among the various certificates: election to a full term, election to an unexpired term, and appointment. (Riddick, at 697-9). They all seem to be returns for these purposes.(And, the term "return" is/was used in a variety of context in our history, including appointments.)

It's plausible that the court might require that the return be corrupt under some cognizable standard, perhaps state and federal criminal statutes, rather than mere political unpopularity. While Powell was strictly speaking about "qualifications," it does stand more broadly that politically unpopular isn't a basis for excluding a member.

But the inquiry into the process itself seems to fall within Art. I, 5.
1.3.2009 3:34pm
Parenthetical:
Man from mars:

The definition of "Return" ferreted out by Amar, a "report of an appointment", could not have been intended by the Framers because there were no appointed Senators when Article 1, Section 5 was ratified.

From an absurdly literal reading of your post, I concede you're correct (by which I mean that there no sitting U.S. Senators of any kind until after the Constitution was ratified).

That said, the Senate swore in the first appointed Senator barely one year into the First Congress (John Walker of Virginia, March 31, 1790).
1.3.2009 5:07pm
ReaderY:
The question of what the Senate can do in the presence of a credible allegation of a corrupt appointment is an interesting question, but it doesn't apply here. There's no evidence that the appointment was corrupt.

Let's extend the logic. Suppose it was alleged the governor smoked pot, or had an affair. Can the senate really refuse to seat a senator because of allegations -- no indictment or impeachement, let alone trial or conviction, just allegations -- that the governor committed wrong unrelated to the appointment.

If the senate can do that, can they refuse to seat a senator because some of the voters in the election were known to have had parking tickets?

If the senate can refuse to seat a senator because all or some of the people involved in selecting him are thought to be bad people for reasons other than the selection itself, what kinds of other badness can they consider? What's the limit to the principle here? Is there one?

In every election, some of the voters are bad people who did bad things. Is the election thereby tainted? If it is, would any election in this country be free of refusal to seat if a majority of the senators were (for example) from the other party on grounds that the involvement of the bad people tainted the selection? If not, what's the limiting principle that prevents a Senate from doing that?
1.3.2009 7:22pm
pluribus:
ReaderY:

The question of what the Senate can do in the presence of a credible allegation of a corrupt appointment is an interesting question, but it doesn't apply here. There's no evidence that the appointment was corrupt.

Let's extend the logic. Suppose it was alleged the governor smoked pot, or had an affair. Can the senate really refuse to seat a senator because of allegations -- no indictment or impeachement, let alone trial or conviction, just allegations -- that the governor committed wrong unrelated to the appointment.

Except the U.S. attorney has filed an affidavit reporting telephone conversations in which the governor solicited bribes to make the very appointment he has just purported to make. You call that "no evidence"? No different than smoking pot or having an affair? This goes to the appointment of a U.S. senator. Not even worthy of an investigation before the senator is seated? I call it a little more than "interesting question."

PS. Do you check the news from time to time?
1.3.2009 7:52pm
Parenthetical:
ReaderY:

In every election, some of the voters are bad people who did bad things. Is the election thereby tainted?

Not if the issue was voters with parking tickets, as your hypothetical entertained.

I'm arguing merely that the Senate may inquire into the propriety of a (s)election. It may refuse to seat a senator while it does so. Or, it may seat the senator without prejudice to the outcome of the investigation (which happened, for example, to Mary Landrieu in 1997).

While there does seem to be a general principle in play in prior Senate challenges (the taint must affect the outcome of the election), the record lacks a bright line.

Senator-elect Vare, who I mentioned earlier, was found to have been personally involved in a wide ranging scheme of electoral corruption. In the end, the committee report concluded that the tainted votes would not have affected the outcome. More than two years after the contested election, the Senate nonetheless refused to seat Vare (and also refused to seat his opponent). The governor finally appointed someone else, who was seated.

Contrast that case with Landrieu. Despite a very close run-off contest (less than 6,000 votes) and the Rules Committee finding a "host" of irregularities and "isolated incidences of fraud," the Senate dropped the investigation. The committee report found no organized attempt to favor a particular candidate.

We do seem to part ways on whether there's "no evidence that the appointment was corrupt." There is direct evidence that the governor was acting illegally at the outset of this process. Whether or not that continued throughout the process culminating in Burris' selection, I have no idea. I've certainly heard of no evidence that Burris acted improperly (imprudently perhaps, but that's not the issue).

Regardless, there's enough cause (circumstantial evidence) to warrant an inquiry. What evidence the Senate may have before it when the time comes to reach a conclusion, I wouldn't hazard a guess. I doubt that Blagojevich will testify. That may well leave the Senate with a very lopsided pile of facts to sort through.

Legally, it would be interesting to see if the courts punt on the particulars of proceedings that could result in Burris' appointment being refused. If the Senate, sitting as judge of election, returns and qualifications, sustains a colorable case that the appointment process itself was tainted, what would the courts do?

I don't see that as the most likely outcome.

If the investigation finds no malfeasance on Burris' part, it may simply seat him, despite the present bluster.

I'd like to think Balgo's days in office are numbered. In which case, a more likely outcome would resemble the dueling appointments in 1940-41 from West Virginia (both the outgoing and incoming governors appointed someone to fill a vacancy; the Senate had to choose between them). Or, perhaps the new governor will simply reappoint Burris without the stench of Balgo's apparent misdeeds. That would make the decision much easier.
1.3.2009 8:15pm
subpatre (mail):
Oren wrote: "can the Senate even expel Burris (by 2/3rds vote) even if Senate rules nominally forbid such a thing?"

In two parts:
1) Can the Senate expel Burris? Once seated, absolutely 'Yes'.
2) If the Senate rules nominally forbid it? Dunno, but probably not.
It seems moot to me, if the Senate wants to 'get' Burris, they can change their rules to allow it and oust him by two-thirds; end of story.

This 'problem' is a factional quarrel, exactly as the Founders anticipated and guarded against in the Constitution. The guard is to force the issue onto the floor, and require a supermajority vote on it. I would agree with the Founders and the Powell Court the Senate can expel its members for (almost) any reason. Doing so may be a bad decision —conceivably even precipitate a war— but that is the Houses's perogative.

What the legislature cannot Constitutionally do is define their own membership —they cannot bar the door— although they can expel them almost as soon as they are seated.
1.3.2009 10:21pm
ReaderY:
The difficulty is that there's no allegation of a bribe in this appointment.

There was a habeas case a decade ago in which a defendant was sentenced to death by a judge who had subsequently been convicted of taking bribes in other cases. He argued that this tainted his case on the theory that the judge would be included to be tougher with defendants who didn't bribe him, both to allay suspicion by appearing to be tought on crime, and to help communicate the consequences the consequences of not doing business to prospective defendant-clients. The Supreme Court bought the idea and ordered an evidentiary hearing?

What's the link here? Why is there reason to believe that this specific appointment is corrupt in the absence of specific evidence, other than allegations that the governor is corrupt in other cases and hence might be in this?
1.4.2009 4:05pm
Parenthetical:
subparte:

If the Senate rules nominally forbid it [expelling Burris for acts committed prior to becoming a member]? Dunno, but probably not.

I realize you're responding to a hypothetical here, but the question of House/Senate rules has come up often enough that I'll try to add some clarity.

As noted earlier, rules can be suspended (with a few exceptions) or changed. The rules limiting member-conduct investigations are quite sparse. Both houses of Congress prohibit investigations of conduct that predated the (otherwise) relevant law, rule, standard, or regulation. The House rules also forbid investigation into conduct that occurred before the third prior Congress (with exceptions for earlier conduct that is directly related to a timely allegation). I don't believe the Senate rules include an explicit time limit.

What's really in play here is precedent, not rules. As with the courts, precedent has some binding force in Congress. When circumstances dictate (or some arcania is overlooked), however, both houses have changed precedents.

There is ample precedent to investigate a member's misdeeds during prior Congresses or prior to membership in the Congress. The relevant precedent is that censure (or other forms of admonishment) may be appropriate for prior acts, but expulsion is not.

There are a couple of key points that permeate debates about the impropriety of expulsion for prior bad acts. One is that the electorate had at least some knowledge of the allegations and chose to elect the member anyway. Secondly, if the conduct isn't continuing, it need not impair a member's present duties.

In the case of an appointment where a governor was acting corruptly, I don't see how the first of these principles applies. How exactly the second one would apply to Burris is more complicated.

Regardless, I agree with you that the Senate can expel a member for just about any reason, so long as the supermajority concurs. I'm not aware of anything in the rules that would stymie the proceedings. And, I don't see any precedent that's particularly apt.

Although permissible, expulsion seems like an inappropriate response here. Of course, I'm not a politician.
1.4.2009 4:48pm
man from mars:
Parenthetical,

Good point. But, as I said, I fail to understand why the power to judge a report of an appointment should include the power to judge the appointment itself.

If the Senate had reason to believe the Governor had not actually appointed Burris it could reject Burris on those grounds. Where is the power to judge the actual quality or corruption-free nature or lack of taint of the actual appointment by Reid?

And where is the outrage? Even if there were some weird convoluted way to construe the power to judge a report of an appointment as a power to judge an appointment (not that I have even seen an attempt to do that); or the power to judge Elections as the power to judge Appointments; nobody could possibly have believed the clause meant that prior to their media-induced Blagojevic hatred. I mean, the sense of the clause here is very, very simple, accessible to any layman: the Senate can judge (1) Elections; (2) Qualifications; and (3) Returns. Why is everyone sitting bemusedly at these press and congressional attempts to wrench away the plain, clear meaning of what's supposed to be the defining document of the country.
1.5.2009 2:53am
pluribus:
ReaderY:

Why is there reason to believe that this specific appointment is corrupt in the absence of specific evidence, other than allegations that the governor is corrupt in other cases and hence might be in this?

No, not "other cases." As evidenced by the wiretaps, he solicited bribes for this specific appointment--the appointment of a senator to succeed Barack Obama. We do not know if he gave up on getting a bribe when he appointed Burris. Why do we assume he did? We know he was soliciting bribes up to that time.
1.5.2009 11:36am
Parenthetical:
man from mars:
I fail to understand why the power to judge a report of an appointment should include the power to judge the appointment itself.

The Constitution is silent as to what may make a return invalid.

In this case, the argument would have to be something along the lines that the return is the product of a criminal enterprise. Should the senate reasonably conclude that has occurred (which strikes me a premature at this point), I find it unremarkable that the Senate would judge the return invalid. Absent a lawful return, the Senate need not seat the senator.

This is entirely different from saying that the Senate may choose not to seat a senator because it thinks the governor is unpopular or unseemly or did bad things (unrelated to the return).
1.5.2009 1:54pm
wyswyg:
"Here, we have the Senators of the other 49 states colluding with Illinois's Dick Durbin to deny the people of Illinois its full representation in the Senate."

I don't think that the debate is aided by this sort of blatant misrepresentation. There is no such conspiracy to "deny the people of Illinois its full representation in the Senate". There is a good faith disagreement over how the Illinois Senator ought to be selected. It's being compounded by the Illinois Democrats naked political calculation and fear of having a prompt election.
1.5.2009 3:13pm
man from mars:
Parenthetical,

I fail to understand why the power to judge a report of an appointment should include the power to judge the appointment itself.


The Constitution is silent as to what may make a return invalid.

In this case, the argument would have to be something along the lines that the return is the product of a criminal enterprise.


The definition Amar uses is that a "return" is a "report of an appointment." Taking that as valid, the validity of a report is not related to the validity of what it reports.

I hand in a book report to my 5th grade teacher, who promises to "judge" the report. He can consider if the report is accurate, fair, well-written, actually produced by me, and so on. But he cannot judge the report based on the underlying book.

I tell an editor to judge if AP is reporting the football playoff scores accurately. The editor can only assess whether the playoff scores are accurate, not whether the referees made good calls or bad calls or whether the teams played well. To judge a "report" means just that - judge the report itself not what it reports.

If Amar believes that a "return" is a "report of an appointment" then the power to judge the return is only the power to judge the [i]report[/i].

If not, if the power to judge a return included the power to judge the underlying election, then the power to judge Elections in Art 1. Sec. 5 would be pointless. Clearly, the Constitution envisaged two distinct powers allocated to the Senate:
(a) The power to judge Elections; and
(b) The power to judge reports of Elections.

Power (b) carries over, according to Amar, to appointments, so he argues, correctly I think, that the constitution now includes these two powers granted to Senators:

(a) The power to judge Elections, and
(b') The power to judge reports of Appointments.

Unfortunately for Amar's argument, there is no power

(a') The power to judge Appointments.

Amar seems to be just pulling power (a') out of thin air. There is no power to "go behind the report" for the reasons above and just plain simple reading.

(Again, I am speaking legally. Pragmatically, the Senate can come out with any rationalization it wants to deny Burris a seat and then rely on non-justiciability to prevent judicial review, as in Morgan v. US (DC Cir. 1986) (Scalia, J).)
1.6.2009 5:10am
man from mars:
Just to clarify my citation to Morgan above - I meant that pragmatically the Senate can rely on Morgan for non-justiciability, either to bar Burris or simply to delay the argument long enough that the matter is moot. Thus, the Senate probably does not have reasonable arguments to deny Burris for long just based on expansive interpretations of "Returns" or "Elections" alone. But it probably does have reasonable arguments on non-justiciability of its interpretation of those terms. And those justiciability arguments could take a very long time to resolve, even if they were not accepted.
1.6.2009 5:23am

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