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Can The Senate Refuse to Seat Roland Burris? Quite Possibly

By Jack M. Balkin

Governor Blagojevich has decided to appoint former Illinois Attorney General Roland Burris to President Elect Obama's vacant Senate seat. Several commentators have argued that because of Powell v. McCormack, the Senate cannot refuse to seat Burris for any reasons other than whether he meets the qualifications of age, residency, and U.S. citizenship specified in Article I, section 3. He meets those qualifications, therefore he cannot be refused a seat. Instead, the Senate by two thirds majority, must vote to expel him, a considerably more difficult task.

Sounds like an airtight argument, right?

Not so fast.

Article I, section 5 reads: "Each House shall be the judge of the elections, returns and qualifications of its own members."

Hence the Senate may refuse to seat Burris for three reasons: because he is not qualified under Article I, section 3, because the election returns do not support him, and because his election was not properly conducted. Nothing in Powell v. McCormack is to the contrary. In Powell, the Supreme Court repeatedly assumed (and repeatedly asserted) that Powell had been duly elected, and Congress did not attempt to refuse to seat him on that ground.

In this case, Burris was not elected; he was appointed. Since he was not elected, perhaps the Senate could refuse to seat him for that reason. No, you might reasonably reply: That would be crazy. It would mean that whenever a Senator was appointed rather than elected, the Senate could automatically refuse to seat the person for any reason, which would be an end run around Powell v. McCormack.

Similarly, it would make no sense to say that because Burris was appointed but not elected, the Senate has no authority to judge whether he was duly appointed, because that would be an end run around Article I, section 5 of the Constitution in the other direction: Under that argument, the Senate would have to seat anyone who was appointed by anyone who claimed to be the lawful governor of a State, even people who were appointed by a sitting governor as the result of a transparent bribe. That is, under this argument, the Senate could look into whether an election was rigged but not an equally corrupt appointment.

Instead, you might argue, Section Two of the Seventeenth Amendment modifies Article I, section 5. It states:

"When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the Legislature of any State may empower the Executive thereof to make temporary appointments until the people fill the vacancies by election as the Legislature may direct."

Thus, you might argue, the Senate must treat a person appropriately appointed by the executive authority of the state as duly elected for purposes of Article I, section 5.

But that is precisely is the basis of the Senate's refusal to seat Burris. In the Senate's view, Burris has not been properly appointed by the executive authority of the State of Illinois.

Why might the Senate conclude that Burris has not been properly appointed by Illinois' executive authority? Well, for starters, it looks like the Governor might be corrupt and was trying to sell the seat.

But, you might respond, the Governor has not been convicted of anything. Surely he is innocent until proven guilty.

True enough. But Article I, section 5 does not contemplate a criminal proceeding. Rather, it contemplates that the Senate will be the judge of the circumstances of election (or in this case, after the Seventeenth Amendment, an appointment.).

And if the Senate decides that Burris has received his appointment in suspicious circumstances, the question is whether the Supreme Court could overturn their judgment or whether it must defer to it. The answer to that question comes from none other than Powell v. McCormack: In that case the Court said that the Constitution provided a textually demonstrable commitment to judging the qualifications listed, but no others. However, the same constitutional text gives the Senate the authority to judge the elections and returns of its members. If the Senate determines that Burris has not been duly elected (or, under the Seventeenth Amendment, duly appointed), Powell might seem to suggest that courts should defer to that judgment under the political question doctrine.

Is the argument I have presented foolproof? Probably not. I can think of a number of different issues to raise in objection. As new ideas come in, I will try to list them below.

However, what I have said is enough to suggest that the question of whether the Senate can seat Burris is not open and shut. It is very likely that the Senate would have a fairly plausible argument for refusing to seat him. And the Supreme Court would have a fairly plausible argument for deferring to the Senate's decision.

Let me conclude by saying that I have not yet made up my mind whether I think this is a good thing or a bad thing. Perhaps it would be better to just have the matter settled, so perhaps the Senate should just allow Burris to be seated so that we can get on with the country's business. What I do believe is that the Senate may have more options in this case than one might think.

Full post as published by Balkinization on December 31, 2008 (boomark / email).