Legal Commentary

Calvin Massey has concluded that the holding of Powell v. McCormack requires the U.S. Senate to seat Roland Burris. I believe that Massey is mistaken: In my view, the Senate may refuse to seat Burris pursuant to its power to judge "the elections" or "returns" of its members. Whether one agrees with me, however, depends on the degree to which one is willing to read Powell in light of its motivating principle of popular sovereignty.

According to Massey, "Powell v. McCormack held that the House could not refuse to seat Adam Clayton Powell, so long as he met the three constitutionally specified qualifications: age, residency, and citizenship. Powell appears to be squarely applicable to this case." But this cannot be literally correct. Suppose, for instance, that I purported to appoint, say, Saul Levmore to the Senate. Saul meets those "three constitutionally specified qualifications," but the Senate nevertheless obviously is not required to seat him, because the Senate is empowered to determine whether I am the constitutionally specified elector of Illinois' replacement senator. The Senate, in short, must be able to judge the qualifications of the elector(s) as well as the elected. Evaluating electors' qualifications is part of what it means to judge "returns."

So the question is whether the power to judge the qualifications of the electors implied by the Senate's Article I, section 5 power to judge "returns" should be construed broadly or narrowly. Can the Senate determine that, because he has been disgraced and is likely to be impeached, Blago no longer exercises the "executive authority" of Illinois under Article I, section 2? One might argue that whether Blago is truly the "executive authority" and, therefore, qualified elector of replacement Senators ought to be purely a question of Illinois law, to be determined by the Illinois Supreme Court. (This is the implication, for instance, of Smiley v. Holm, 285 U.S. 355 (1932), in which the Court held that the "legislative" power of the state under Article I, section 4 was defined by the state's constitution and, therefore, included the governor's veto power). But there is authority on the other side of the question: For instance, Justice Rehnquist's concurring opinion in Bush v. Gore, 531 U.S. 98, 112-120 (2000), suggests that, when state law performs a constitutionally specified function, then the definition of state law raises a federal question to be determined by federal actors.

It seems to me that, read in light of its persistent references to popular sovereignty, Powell v. McCormack is not germane. Powell emphasized that the House's power to add qualifications for elected officials would interfere with the right of the people of Harlem to elect whom they pleased to represent them. But it is difficult to make a similar argument that broadly construing the Senate's power to define "executive authority" of Illinois would erode the Illinois voters' sovereignty. Unlike the people of Harlem, Blago's popular mandate is purely delegated, and Blago's replacement (following Blago's likely impeachment) is far more likely to enjoy a popular mandate than Blago himself. Perhaps there is a good reason to allow a disgraced Illinois pol lock in his choice as Senator under these circumstances. But I do not see Powell v. McCormack as supplying that reason.