Academic

Blago, Burris and the Senate: A Reply to Rick Hills

By Calvin Massey

  Over at PrawfsBlawg, Rick Hills thinks I am wrong to declare that Powell v. McCormack controls the question of the Senate's power to refuse to seat Roland Burris, Governor Blago's appointee to the Senate.  Hills relies on the Senate's power, under Article I, section 5, to judge the "elections" and "returns" of its members.  Hills makes a perfectly valid point (which I implicitly assumed in my earlier post) that an appointment by someone wholly lacking in power to make the appointment could not possibly result in a valid appointment.  But this point is explicit in the Seventeenth Amendment, which authorizes state legislatures to empower "the executive authority" of a state to make an appointment to fill a Senate vacancy.  Perhaps the Senate has the power to determine if the person making the appointment is the "executive authority" of the state, but that doesn't end the matter. At the very least Powell makes such a Senate judgment justiciable.  A Senate determination that  Blago was not the Governor of Illinois when he appointed Burris is patently false.  Upon proper suit, a court would surely overturn that Senate ruling. Hills relies on the popular sovereignty rationale of Powell as being inapplicable to the case of a Senate appointment, but the Seventeenth Amendment is the counter to that argument.  The default position of the 17th Amendment with respect to vacancies is to require the "executive authority" of the state to issue "writs of election to fill such vacancies," but the Amendment's proviso vests in the state legislature the power to dispense with an election and give the Governor the appointment power.  The people of Illinois have done that, through action of their legislature.  Popular sovereignty is neither compromised nor advanced by Blago's exercise of the power.  Of course Blago should be chucked, but until he is ousted as Governor, he remains the "executive authority."  To allow the Senate the power to decide which gubernatorial appointments are deserving of recognition and which are not is a rejection of the will of the people of Illinois.  Those people could change the law tomorrow, if their legislators were willing, to deprive the Governor of the appointment power.  The Illinois legislature  should have done that before Blago overreached with the Burris appointment.  I remain of the opinion that the Senate must seat Burris, but should then expel him.  

Full post as published by The Faculty Lounge on January 01, 2009 (boomark / email).