Bench Memos

Can Harry Reid Stop the Blago-Burris Express?

Moments ago, Illinois Gov. Rod Blagojevich announced his intention to appoint former state attorney general Roland Burris to Barack Obama’s vacant seat in the U.S. Senate.  As Kathryn has posted in The Corner, Senate majority leader Harry Reid has issued a statement that any Blagojevich appointee “will not be seated by the Democratic Caucus”–a position Reid staked out weeks ago.

The Chicago Tribune reports that the Illinois secretary of state has said he will not certify Blagojevich’s appointment.  I don’t know whether state law requires such certification in these circumstances.  If so, Blagojevich might be stymied.  But the Constitution of the United States certainly doesn’t require it.  The Seventeenth Amendment reads:

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.

State law as it currently stands empowers the governor of Illinois to make this appointment.  Rod Blagojevich is still the governor.  Brazenly shameless this act may be–but constitutionally valid it certainly is.

If state law does not (or cannot) stand in the way, can Harry Reid and the Democratic caucus make good on the promise not to seat a Blagojevich appointee?  Article I, Section 5 of the Constitution says:  “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.”  Until 40 years ago, there was little doubt that the Senate could have refused to seat a would-be senator, however valid the process of his selection.  But in 1969 the Supreme Court decided Powell v. McCormack, holding that the House of Representatives could not deny a seat to a duly elected person who met all the Constitution’s qualifications and suffered from none of its disabilities.

I think Powell was wrongly decided–for reasons irrelevant here–but it is generally accepted as an authoritative gloss on the power of either house of Congress to deny a seat to a validly chosen would-be member.  Rod Blagojevich has treated Harry Reid’s threat like a bluff he is now calling.  My bet is that Reid will fold.

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