Balkinization: The farce continues

The farce continues

Sandy Levinson

According to a story on the Times website, Illinois's Attorney General "said on Wednesday that the secretary of state cannot be compelled by the court to sign the papers, and that it is up to the Senate to resolve the matter in Washington." This is really quite extraordinary, if she's being represented accurately. It seems to suggest that Illinois courts are without power to issue a writ of mandamus to a state official who is, it appears, acting absolutely lawlessly in refusing to act under his clear statutory duty to recognize the unimpeached governor's legal ability, under Illinois law (and the 17th Amendment) to appoint a senator by certifying the instrument of appointment. Lisa Madigan, of course, earlier went to court to ask it to declare the Governor mentally incompetent to serve, so she certainly doesn't shy away from judicial intervention. What, precisely, does she want the Senate to say: that it will waive the requirement of certification if they determine that a state official, in this case the secretary of state, is behaving lawlessly? Or that it will dispense with the certification requirement entirely inasmuch as this appears to add to the requirements set out by the 17th Amendment? If Illinois were a business, one might suggest placing it in receivership. But, hey, most people think we really didn't need a functioning President the past ten weeks, so why should we think that one of our major states needs a functioning state government?

Apropos of dysfunctional state governments, I note that the New York legislature has just met; it is, for the first time since 1964, controlled in both houses by the Democrats, so it will be interesting to see if it is capable, for example, of preparing a budget or otherwise acting like a responsible government. To expect New York to function like a democracy, even under Democratic leadership, is probably too much, however. Federalism would look a lot better if we could find more states that provide models of responsible governance. I'm sure there are some (and I am not being at all sarcastic).

Posted 6:47 PM by Sandy Levinson [link]

Comments:

Marbury v Madison revisited!!

# posted by

Brendon : 7:11 PM

As a lifetime resident of this great state, I was going to take exception to your characterization of the political scene in Illinois, but as a lifetime resident, I also realize any objection would be futile.

I think that Madigan's play is more concerned with the politics of Reid trying to leave Illinios pols on the hook for the situation, even though he has done more than his share to write the script for this farce. I'm wondering if he is using the consulting firm of Fine, Howard, and Fine.

# posted by

Fraud Guy : 12:00 AM

What's odd is that the SoS apparently hopes that Burris will be seated, but refuses to sign the papers all the same. See here:

http://www.politico.com/blogs/bensmith/0109/
Illinois_Secretary_of_State_
backs_Burris_downplays_own_role.html?showall

# posted by

Asher : 1:06 AM

Apparently Illinois' Attorney General and Secretary of State are, like school children, concerned that if their fingerprints appear on the appointment of Burris even ministerially, that would become part of their permanent political records.

Frankly, the reactions of our constitutional scholars on this subject have them competing with economists on the current financial crises on a bottom rung.

# posted by

Shag from Brookline : 7:11 AM

I don’t know why you would call this a farce. The Illinois Secretary of State, with the backing of the Attorney General, refuses to sign Burris’s certificate on the grounds that this is merely a ceremonial act because the real authority to decide whether to seat Burris resides in the Senate. The Senate, meanwhile, refuses to seat Burris because he lacks a certificate signed by the Secretary of State.

This is merely a routine application of the well-established constitutional doctrine of “catch 22.”

# posted by

mls : 8:01 AM

"This is merely a routine application of the well-established constitutional doctrine of 'catch 22.'”

I can hardly wait to hear what originalists have to say about this doctrine. Some think this goes back to Marshall's Marbury v. Madison, long before Joseph Heller's Yossarian.

# posted by

Shag from Brookline : 8:17 AM

As a resident of NY, the last matter is of some concern.

The musical 1776 had a somewhat cynical view of our state's government, with some degree of justice. To call it "democractic" is a bit much, given the power of three people -- the governor and the leaders of each branch of the legislature.

This is not a matter of party per se. The fight over the control of the state senate also isn't too promising. After the election, it was 32-30 Democrat, but three rebels threatened Dem control, the weak leadership of the presumptive majority leader (control of the party's caucus was once held by our current legally blind governor, in power because of the Spitzer mess -- the lieutenant governorship vacant, meaning until recently, the second in command was the Republican head of the state Senate) not helping. Nor is the fact one newly elected senator (necessary for a majority) allegedly is guilty of spousal abuse of help.

But, state politics is messy. SL's concern for governance over his usual tilting at windmills concern of pushing for a new constitutional text is helpful though.

# posted by

Joe : 8:48 AM

As a lifetime resident of this great state, I was going to take exception to your characterization of the political scene in Illinois, but as a lifetime resident, I also realize any objection would be futile.

It's like watching a train wreck that goes on for decades sometimes, isn't it? For instance, one can't understand Lisa Madigan's fight with Blagojevich without knowing that her father has been fueding with the guy (and everyone else) for years. And don't even get me started on Daley. :)

# posted by

PMS_CC : 12:08 PM

"[M]ost people think we really didn't need a functioning President the past ten weeks."

Let's be fair here. We have had a very unique form of cohabitation. Obama leaves foreign policy to Bush but uses his persuasive authority to advance the ball on the economy.

Meanwhile, Bush tries to administer the laws concerning the economy in such a way as not to prejudice the policies of the incoming administration. In other words, he is leaving further major decisions on the economy to Congress and his successor.

# posted by

pinkerd : 6:20 PM

PMS,

But, but...isn't the wrought iron beautiful?

pinkerd,

well, except those laws which they are eviscerating as they go.

# posted by

Fraud Guy : 9:35 PM

As a follow up to my earlier comment comparing economists and constitutional scholars, see Robert Higgs' "The Latest Reported Bankruptcy: Mainstream Economics" published 1/9/09 at:

http://www.independent.org/newsroom/article.asp?id=2404

I'm not a libertarian (Higgs is), nor an economist nor a constitutional scholar. But what Higgs says about economists can also apply to constitutional scholars, even though economists lack anything equivalent to a written constitution to interpret, only (as little Lisa's bro would say) the law of supply and demand. Maybe there is a need for a double pointed pin for constitutional scholars and economists to dance on, and perhaps with each other (I assume Judge Posner might wish to lead). They all speak the same language but at times it all sounds like a tower of babble (sic).

# posted by

Shag from Brookline : 6:27 AM

The Fat Lady has sung so the dancing can stop - Burris is the junior Senator from Illinois - with at least part of the Constitution intact.

# posted by

Shag from Brookline : 5:48 PM

Prof. Vikram David Amar at FindLaw

http://writ.news.findlaw.com/amar/20090116.html

provides a postscript, but he may be dancing all by himself after the music has stopped as he criticizes democratic Senators and Pres. Elect Obama for changing their minds, carrying stare decisis a tad too far. Could it be that their initial reactions were a bit extreme?

# posted by

Shag from Brookline : 8:44 AM

Shag- thanks for the link to the Vikram Amar article. I think it is useful, even though I wish he had gone further in thinking about the problem of how a political actor like the Senate makes legal decisions. Amar basically reiterates the theory of the Akhil Amar/Chafetz article, under which the Senate has a fairly broad authority to exclude appointees where the appointment is “tainted” by corruption, but not itself corrupt. This is a respectable (though I think mistaken) argument.

The first problem, however, is that this concept gets translated in Harry Reid’s mind as “the Senate can refuse to seat anyone for any reason.” This is an assertion of total discretion to do whatever he wants, not at all what Amar/Chafetz were arguing for.

The second problem is that Reid and company, perhaps realizing that their position was either politically or legally unsustainable, quickly retreated from it. They then fell back on the notion that the Senate was without power to seat anyone without a certificate signed by the Secretary of State. In other words, they moved from a position of the Senate being all-powerful to a position of the Senate being completely helpless. This second position was even sillier than the first, as the Illinois Supreme Court rather undiplomatically pointed out.

I think this reflects a deeper problem than just the Senate going back on its word, as Amar characterizes it. I don’t have a magic solution for the problem (although I have some ideas about how the Congress could improve the ways it gets legal advice), and I would have liked to hear Amar’s ideas on the subject.

# posted by

mls : 9:55 AM

Amar suggests that if the Senate denied Burris, the Supreme Court might have denied relief to him because a political question would be involved. Assuming such, Amar did not consider that the Senate democrats made a political decision, resolving what might have been such a political question. Relative to stare decisis, the initial position of the Senate democrats had a short life as it morphed to acceptance of Burris.

Frankly, I am not that often thrilled by appointments of other governors to the Senate, as it usually is political and may involve hidden quid pro quos.

And as an attorney for 54 years, I still have respect for the presumption of innocence, even when it applies to Blago. We don't have to respect him, but we attorneys should respect the presumption.

# posted by

Shag from Brookline : 11:08 AM