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Further lessons on why structures matter

By Jack M. Balkin

The farce currently underway in Springfield and DC can be traced, among other things, to the fact that Illinois, like most states, has rejected the "unitary executive." That is, various executive officials are elected independently of the governor and are in no way subject to control by the governor. Whatever one thinks of the "unitary executive" at the national level, no reasonable person can argue that it reflects some "American" approach to government, since it is the US government that is in fact the outlier. If Illinois did have a unitary executive, then presumably the governor could simply fire an insubordinate secretary of state who refused to sign the letter of appointment. (Or is the argument that the secretary could refuse to leave on the grounds that the unimpeached governor is no longer the "real governor" who has the authority to hire and fire members of his administration?)

In any event, a story in tomorrow's times on the Senate's refusal to accept Burris's creditials sets out the issue very clearly:

After reviewing the appointment letter presented by a representative of Gov. Rod R. Blagojevich, Nancy Erickson, the secretary of the Senate, found that the paperwork did not comply with Rule II of the Senate?s standing rules, which requires signatures of both the governor and the secretary of state.

The Illinois secretary of state, Jesse White, has refused to sign, saying the appointment is invalid because of the federal corruption investigation surrounding the governor and what prosecutors describe as his efforts to sell the Senate seat....

Given my own "constitutional protestantism," I rather like the fact that every public official is suddenly asserting the ability to decide on his or her own what are in fact quite interesting and complicated constitutional issues. That being said, I still don't understand how one of the Senate's standing rules can in effect give someone other than the governor the de facto ability to veto a gubernatorial appointment that meets all relevant state law requirements, in a context where the state official who refuses to co-sign appears to be violating the face of the relevant Illinois statute that imposes a duty to sign. I must say that I wish Sen. Reid had stood up to George W. Bush with the same vigor that he is standing up to the feckless Gov. B.

I happily concede that the Senate could reject the appointment if it had reason to believe that it was in fact procured through bribery or some other criminal misconduct. But, as everyone seems to concede, there is no such evidence. How important is it, incidentally, that the Governor is accused of trying to sell the seat? What if he were accused, instead, of spousal abuse or drunken driving? That would also discredit him in the eyes of most people. Would it also allow the secretary of state to refuse to sign the letter of appointment and the Senate to refuse to seat the senator-designate? Or is the specific misconduct important, so that he retains all other powers (until impeached) except appointing a senator to fill the vacancy?

UPDATE: I should note that the "reader" who informed me about the relevant Illinois law was Jeff Norman, who has in fact published two illuminating blogposts on the Huffington site discussing the matter.

Full post as published by Balkinization on January 05, 2009 (boomark / email).