Ethics

Can Senate Refuse to Seat Burris?

By Ed Brayton

Does the Senate have the constitutional authority to prevent the appointment of Roland Burris to Obama's seat? Akhil Amar, who I consider one of the finest legal scholars in the country, says yes.

Does the Constitution allow the Senate to refuse to seat Roland Burris, Illinois Gov. Rod Blagojevich's surprise appointee? In a word, yes. Here's why.

Following English parliamentary tradition and early Colonial and state practice, the framers made the Senate its own gatekeeper and guardian. Each house of Congress is "the Judge of the Elections, Returns, and Qualifications of its own members," according to Article 1, Section 5 of the Constitution. At the founding, Senators were elected by state legislatures. If the Senate believed that legislators in a given state had been bribed into voting for a particular candidate, the Senate could refuse to seat him.

Because of the word "returns" in Section 5, what is true of elected Senators is equally true of appointed Senators. According to the Oxford English Dictionary, a "Return" in the time of the framers involved a report of an appointment made by a sheriff or other official. If the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process. (Alternatively, we might think of an appointment as an "election" by one voter.)

Full post as published by Dispatches from the Culture Wars on January 06, 2009 (boomark / email).