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Criticism Law Politics The Opinionsphere

Yes, the Senate Can Refuse to Seat Roland Burris

[digg-reddit-me]Ever since Governor Blagojevich announced his appointment of Roland Burris to take Obama’s Senate seat, the Conventional Wisdom has been that while Blagojevich’s actions are unseemly they are within the law – and more importantly, that Harry Reid and the rest of the Senate can’t do anything to stop Burris from being seated. The LA Times opined:

Exasperated as they are at being outfoxed by Blagojevich, his colleagues and critics must face the fact that he is still the governor of Illinois and empowered to appoint an interim U.S. senator. It’s not a pretty situation, but it’s the law.

The Wall Street Journal suddenly discovered the Constitution and the Rule of Law after eight years of amnesia1 and declared that this was a matter of “Harry Reid v. the Constitution,” claiming without equivocation that Blagojevich had “every legal right” to appoint Burris, that the “Beltway Democrats can’t inject themselves into what is clearly a matter of Illinois law,” and finally that:

Nowhere in the Constitution is there a “qualification” saying that a Senator must not have been appointed by an embarrassing Illinois Governor…now that Mr. Burris has been appointed, Mr. Reid can’t legally deny him his seat. If this is the way Democrats are going to use their new monopoly on Beltway power even against a member of their own party, we’re in for an ugly couple of years.

David Gregory, temporarily sans smirk, parroted the same Conventional Wisdom on this morning’s Meet the Press.

This Conventional Wisdom holds that the 1969 Supreme Court case of Powell v. McCormack limits the Senate’s power to take action pursuant to Article I, Section 5 of the Constitition. The Article states:

Each House shall be the judge of the elections, returns and qualifications of its own members…

Powell limited this power by holding that:

In judging the qualifications of its members under Art. I, ยง 5, Congress is limited to the standing qualifications expressly prescribed by the Constitution.

What the LA Times and Wall Street Journal and David Gregory fail to take into account – whether deliberately or not is unclear – is that the Powell case revolved around the question of whether the Congress could judge the qualifications of a member and exclude him or her for bad conduct while Reid is making his case under the Senate’s power to judge the process by which it’s members are selected or elected. On Meet the Press, Reid said that he didn’t know of anything Burris had done wrong or any qualification he lacked. Rather Reid pointed to the tainted process which lead to Burris’s appointment as the problem. This is an entirely separate issue from the one decided in Powell – in which a duly elected Congressman was denied his seat for misconduct during the previous session of Congress:

Our examination of the relevant historical materials leads us to the conclusion that …the Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.

The key phrase being “duly elected.” The Senate still has the power to judge the returns and the elections – and this power was not limited by Powell. The corruption of the process leading to Burris’s appointment is also what Reid & co. keep harping on – rather than Burris’s qualifications. An election of a Senator marred by corruption, like a corrupt appointment, is to be judged by the Senate. Akhil Reed Amar and Josh Chafetz explain the history of this power and it’s previous invocations.

If Reid chooses to push this claim of Constitutional authority and refuses to seat Burris, he may well prevail, proving once again John Kenneth Galbraith’s prescience:

The enemy of the conventional wisdom is not ideas but the march of events.

  1. That’s unfair. The Journal always remembers to invoke the Constitution when slamming Democrats. It only ignores it when Republicans are acting unconstitutionally. []
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Law Politics The Opinionsphere

The Source of Authority

I have my opinion of this statement, but it is somewhat more subtle than most who read this blog might guess – but here’s Dick Cheney being interviewed by Chris Wallace on Fox News Sunday:

The president of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States.

He could launch a kind of devastating attack the world’s never seen. He doesn’t have to check with anybody. He doesn’t have to call the Congress. He doesn’t have to check with the courts. He has that authority because of the nature of the world we live in. [my emphasis]

It’s interesting that though Cheney continually refers to the powers of the Constitution throughout his remarks, grounding his justifications of various extraordinary actions in his unique interpretations of the Constitution, his final source of authority is “the nature of the world we live in.” I don’t think this is the worst possible justification – but it is a hypocritical one for someone who opposed a judiciary that saw the Constitution as changing as the nature of the world we live in changed.