Balkinization: Some more on Burris

Some more on Burris

Mark Tushnet

I'm not sure that Sandy's got this locked down. The 17th amendment says that "the executive authority" of the state "shall issue writs of election" to fill vacancies. (Incidentally, that phrasing suggests, contrary to my earlier comment and the widely circulated Amar/Chaftez analysis, that the Senate's role here really is judging an election rather than a return.) Who "the executive authority" is, is -- I would think -- a matter of state law, subject perhaps to some federal constraint on ridiculously arbitrary definitions (akin to the so-called Article II argument in Bush v. Gore). And it doesn't seem to me that a state is required to define "the executive authority" for purposes of the 17th amendment as "the governor" (or even in the same way that it defines "the executive authority" -- if it does -- for other purposes), or that defining "the executive authority" to be "the governor and the secretary of state, for these purposes" is ridiculously arbitrary (or, perhaps more accurately, that the Senate owuld be acting improperly were it to decide that such a definition was not ridiculously arbitrary).

Posted 8:22 PM by Mark Tushnet [link]

Comments:

what if the state adopted that definition and the governor and secretary of state could not agree on an appointment?

# posted by

CSN : 9:08 PM

And yet the amendment uses 'writs of election' in relation to the election of new senators, not the appointment of their temporary replacements. The writ of election is standard in Commonwealth realms. In Canada the term of the house of commons actually runs from the return of the writs, not election day. The return is the formal endorsement the divisional returning officer makes on the writ.

# posted by

Alan : 9:12 PM

Also, it seems that is what Reid is now requiring. In my mind, a baseless and dangerous precedent!

# posted by

CSN : 9:25 PM

I'm not sure a strict textual analysis is all that helpful here. History gives us some clue about how everyone has interpreted this phrase in the past. If there's to be a departure from prior usage, then there should be a better reason than linguistics.

# posted by

Mark Field : 10:14 PM

There are several problems with your argument. First, as Alan points out, the "writs of election" refer to the special election, not the temporary appointment. (I think nonetheless that you may be correct that the election-judging power is implicated here, but for different reasons).

Second, the term "executive authority" is used in connection with issuing writs of election, while the amendment provides the legislature "may empower the executive thereof to make temporary appointments." Whatever the difference between "executive authority" and "executive," it is the latter that is relevant here. It should be noted that the original Constitution also uses "executive authority" in connection with issuing writs of election for House vacancies, and "executive" in connection with making temporary Senate appointments.

Third, the fact that the original Constitution directly gave the executive of each state the power to make temporary appointments suggests that the "executive" is ascertainable as a matter of federal law, without any special state law relating to appointments. Presumably the identity of the "executive" is determined by actual job responsibilities and powers, not just by title. I suppose it is theoretically possible that a state could create a multi-person executive, but I don't think that you are claiming that is the case in Illinois. And, as Mark Field suggests, uniform historical practice identifies the "Governor" of each state as the "executive" within the meaning of the Constitution.

Finally, even if it would be constitutionally permissible for Illinois to convey all or part of the appointment authority to the Secretary of State, there is absolutely no evidence to suggest that Illinois has in fact done this.

# posted by

mls : 7:42 AM

" ... then there should be a better reason than linguistics."

It might be added that the linguistics have been cunning.

# posted by

Shag from Brookline : 7:46 AM

"it is theoretically possible that a state could create a multi-person executive"

This implies that it is unlikely. In fact, forgive me, the fact we have a "unitary" federal executive (as in one person, not like three) was a notable matter deemed a good idea over quite possible alternatives.

The fact the "executive" might not be able to do certain things on his/her own is quite possible. For instance, in Texas, the pardon power is not freely open to the governor. There is a procedure that must be followed before this "executive" function is carried out.

And, I would follow Justice Stevens' rule in his Bush v. Gore decision that when a word like "legislature" or "executive" is used, it is not supposed to be used in a vacuum, but following state/federal constitutional requirements.

This is surely the case when the 17A says "the State can" give the governor authority here. IOW, if the state does so, it can do so pursuant to state law, such as a certificate req.

There is not one definition of a word like "executive" -- as with defining what an "elector" is, the Constitution leaves some state flexibility. There is some overall "federal" meaning, yes, but there is also some state flexibility.

Anyway, the 17A also notes the executive authority "shall" issue writs of election. If this actually was done, we might have not been in this mess. I think our focus has been somewhat skewered.

# posted by

Joe : 8:31 AM

We could just look at the Illinois Constitution; see:

Constitution of the State of Illinois, Art. V (The Executive).

# posted by

Charles Gittings : 10:09 AM

Off topic...but waiting for our hosts to hold forth on the nomination of Dawn Johnsen to head OLC.

# posted by

Robert Link : 10:32 AM

It think that Prof. Tushnet has it right. For instance, unlike the federal government, many states have elected AGs, and these are indisputably "executive" (and not necessarily subservient to the governors).

I think it's going to be a matter of [Illinois] state law as to whether the SoS (or whoever) has the authority to issue the proper writs. And also whether such a writ is mandatory under certain circumstances, etc..

I think that any Senate rules that demand a specific behaviour from a state (more specific that the Constitutional requirements) must give way to any state procedures to the contrary.

Cheers,

# posted by

Arne Langsetmo : 12:33 PM

Shaq,

Would that be linguists...oh...< shake head > This is a family blog. < / shake head>

# posted by

Fraud Guy : 9:31 PM

Mark has certainly illustrated how the 17th amendment could generate complexities inasmuch as it uses "executive authority" rather than "governor." That being said, I think that the very strong presumption, in terms of our post-Amendment tradition, is that "executive authority"="governor" unless, of course, state law adopts the equivalent of a plural executive by requiring the approval, say, of the secretary of state. But, as everyone who has looked into the matter agrees, there is no evidence at all that Illinois has done that. And I continue to believe that the Senate rule requiring such approval is unconstitutional under the logic of the Arkansas Term Limits Case some years ago.

As to CSN's question, I take it that a state that did adopt a plural executive would be willing to run the risk that no appointment at all could be made in the absence of agreement. I see now reason why a state couldn't make that choice, even if one might regard it as a somewhat stupid one.

# posted by

Sandy Levinson : 10:39 AM