Legal News

Chemerinsky: Allowing Exclusion of Burris Creates Dangerous Precedent

By Dan Slater

UPDATE: The Senate refused to seat Roland Burris this morning. According to the AP, Burris told reporters that he’d been informed that “my credentials are not in order and will not be accepted.”
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Erwin Chemerinsky, dean of UC Irvine Law School and author of the Law Blog’s Con law casebook, has taken used the op-ed pages recently to take on perceived critics of pro bono.

Today, in the LA Times, he turns to Blago and Burris. Dean Chemerinsky begins: “Like it or not, Illinois Gov. Rod R. Blagojevich has the legal authority to appoint Roland Burris to the U.S. Senate, and Burris, the state’s former attorney general, should be allowed to take the seat vacated by President-elect Barack Obama. Senate Democrats are on weak constitutional ground in trying to deny a seat to a properly selected individual. Their claim to the power to exclude a lawfully chosen senator could create a dangerous precedent.”

He moves swiftly through Article I, Section 5 of the Constitution and the 1969 case of Powell vs. McCormack, citing Chief Justice Earl Warren. He bats down arguments made by those who wish to block the appointment, and then finishes with a “dangerous precedent” warning:

Allowing the Senate to exclude Burris on any except the narrowest of grounds would create a dangerous precedent. It could open the door to the Senate or the House overturning the will of the people and excluding representatives under one or another pretext. If Burris — whose appointment meets the legal test, no matter what you think of Blagojevich — is not seated, other properly elected (or appointed) representatives also are at risk. . . .

[T]he taint of Blagojevich’s alleged crimes does not justify ignoring the Constitution. For the last eight years, the Bush administration has ignored or twisted the Constitution to serve what it believed were higher ends. It would be an enormous mistake, as a new administration prepares to take charge, for Democrats to send the Senate down that same path.

Full post as published by Law Blog - WSJ.com on January 06, 2009 (boomark / email).