Wednesday, December 31, 2008

Can The Senate Refuse to Seat Roland Burris? Quite Possibly


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.

UPDATE: Akhil Amar and Josh Chafetz over at Slate reach conclusions similar to mine by a different route: They point out (as does Mark Tushnet) that the Senate is also the judge of the "return" which, in this case, means the report of an appointment. They read Powell v. McCormack in much the same way I do.


I am not sure that I agree with you that the Senate has a "fairly plausible" reason for refusing to seat Burris. Essentially, the reason is that Blagojevich has been accused of previously trying to sell Obama's Senate seat. But even if we accept that accusation as fact, how plausible is it that Burris's appointment was the result of some sort of corrupt bargain? Just because Blagojevich is the kind of guy who would use his appointment power in a corrupt way doesn't mean that every appointment he makes is prima facie corrupt, does it?

I agree that the Senate can investigate the circumstances of this appointment. But unless there is some evidence of actual corruption, there is no legitimate constitutional basis for refusing to seat Burris.

The question of whether such a refusal would be justiciable is by no means open and shut, as you say. One problem for the Senate would be that the power to "judge appointments," unlike the power to judge elections or qualifications, is not textually committed to the Senate.

On the assumption that Burres is "clean," denial by the Senate would most likely be a political mistake or even a disaster at a time when President Elect Obama will have a full plate. It would also deprive residents of Illinois of a second Senator for some period of time. Democrats in the Senate may be concerned that if they do not object to seating Burres, then the Republicans in the Senate (and talk radio) will criticize the Deomcrats. If the Democrats object, then the Republicans can take the high road of defending a qualified African-American Senator AND not prejudging Blagojevich. Denying Burres a seat in the Senate might serve as a precedent for situations where a Governor has not been charged with improper conduct but there may be suspicions/rumors.

mls, your point is well taken. You must make a structural argument that the Seventeenth Amendment modifies Article I, section 5 in order to conclude that the Senate may judge whether executive appointments are valid. The structural argument is given in the original post: the Senate has the authority to decide whether it is letting in somebody who was elected under corrupt circumstances; chances for corruption in temporary appointments are just as great, if not greater.

If the purpose of Article I, section 5 is to give each House the opportunity to protect its democratic integrity, it would seem to apply to appointments under the Seventeenth Amendment as well.

As to your other point, surely there is enough evidence for the Senators to conclude that the process of this appointment is irregular and there should be at the very least a delay for further investigation of the circumstances.

Your argument is certainly plausible, Jack. But judging "elections and returns" is, still, textually judging "elections and returns," i.e., protecting the voting process.

The 17th A. could have included something similar, but didn't.

I guess I'd prefer here a clean line that requires seating someone appointed pursuant to 17th A. form and then a separate punishment/expulsion decision if the person appointed was somehow involved in any corruption.

My concern in part is w/refusal-to-seat power itself being abused; that's surely what Powell is concerned with; and I'd prefer the "elections and returns" power be limited to contested elections, difficult counts (e.g. Franken-Coleman), etc.

I don't know if you've really answered mls's objection. The gravamen of the Senate's complaint is not "irregularity" with respect to Burris's appointment, it's Blagojevich's illegitimacy, both generally and with respect to this appointment power. In other words, refusal to seat in order to buy time to "investigate" would be a sham because there is nothing to investigate here--Burris is prima facie illegitimate because his appointer is a political dead man walking.

What if the Senate investigates, determines that Blagojevich tried to sell the seat, was unsuccessful, and instead chose the person he thought was best qualified who would accept the appointment the way any governor would? Imagine that a regular Senate election was so rife with fraud that its results were thrown out, and a new special election was held shortly thereafter. Should the Senate be allowed to exclude the person nominated in the second election, even if it was squeaky-clean, on account of the first election's being crooked?

It seems to me that it would be far easier for the IL Legislature to schedule a special election 90 days hence, as it can do under Sec. 2 of the 17th A.

In general, I'm not sure why the Senate has much interest in the whole process. The people of IL are the ones who have the legitimate concerns; they should be the ones to solve the problem. The Senate should intervene only in cases where the political system within IL can't solve the problem.

The more I ponder this, the more I think maybe Jack is right (which wouldn't be the first time :) We all have to remember to separate "what does the Constitution mean" from "who gets to say what it means."

On the first question: Pretty strong argument that the Senate should accept the Burris appointment. No evidence of his corruption or of corruption in his appointment itself. Mis and Andrew make some good arguments about this and how the Senate should respond.

But on the second question, I'm now thinking political question might be the right answer, for Jack-like reasons. Elections/returns can interpreted without being overly creative to apply to the 17th A. appointment process. And we can all conjure up cases at both ends of the spectrum -- clear impropriety (appointee bribes gov.) to clear nonimpropriety (senate just doesn't like the appointee).

Do we want courts devising a "test" to decide these cases? Or the Senate itself doing the work? And if we agree the Senate has the unreviewable power to judge elections and returns, and to deem some "returns" improper, then it's not a big stretch to say the same for 17th A. appointments process.

And re: one of my earlier arguments, that the Senate could use punish/expel power if the appointee had bribed etc. the gov., that wouldn't work if the appointee were clean but someone else did a quid pro quo w/the gov. to get the appointee named.

Professor Balkin

The Senate is free to start an investigation for any reason, including the merest suspicion of impropriety. Under the current circumstances, I think an investigation would be justified, if for no other reason than to assure the public that the appointment was not corrupt.

I do not believe, however, that the Senate is constitutionally permitted to refuse to seat an appointee on the basis of mere suspicion. Instead, the Senate should seat Burris, subject to the (remote) possibility that it might later declare his appointment to be invalid, should evidence be found to justify that conclusion.

True, if I were Senate Legal Counsel and the Senate leadership asked me whether the decision not to seat Burris could be legally defended, I would probably have to answer yes, in the sense that I could make a non-frivolous argument along the lines you have laid out. But I would also (I hope) advise them that this would be a constitutionally dubious course of action to take, in that it would go beyond any existing Senate or judicial precedent in asserting an authority to refuse to seat a claimant based on little more than speculation.

I agree with Abner and mls that "elections and returns" relates to electors' votes and their counting. However, if the Illinois Secretary of State refuses to certify the governor's appointing document, as threatened (but clearly subject to mandamus), the Senate can reject it as non-conformant with statute.

Once the issue turns to whether actual votes (or appointments) were corruptly procured, then we have gone beyond facial validity and must seat and expel. Since we are overcoming a presumption of innocence, we do want this to be done by 2/3 rather than a simple majority. We don't want to taint Burriss who may be an entirely fine person chosen because he wasn't on the original tainted list. (Looking thru the Chicago Tribune website, I find no mention of Burriss, although one reader suggested selling the seat on e-bay.)

Mark Field, as I understand, the Illinois legislators are afraid that a Republican might win a special election, so they won't go that route.

Now, if your point is that the Democrats in the Illinois legislature, because of the foregoing consideration plus other features of the current situation, has created a situation in which their state (and their party, for that matter) faces a choice between a tainted senator and no senator, and that the rest of the Senate should let them live with that unhappy result, which they have brought upon themselves, then we agree.

For reasons discussed in my post, I don't think I agree as a normative matter (you may be right in terms of your tea-reading of the Supreme Court.) The problem is that there is, as far as I can tell, no evidence that the appointment of Burris is illegal -- Burris didn't bribe Blagojevich, and Blagojevich had the legal authority to appoint him. As such, it seems to me that refusing to seat Burris would not be related to his qualifications, and therefore he could not be denied his seat without overruling (or substantially reducing the scope of) Powell. Since I agree with Warren and Douglas that the relevant clause should be interpreted as narrowly as possible, I would still apply Powell to this case.

That's a very interesting analysis. I was among those who argued that the Senate probably couldn't refuse to seat Burris, but I hadn't considered your argument. It seems to me, however, that notwithstanding the controversies swirling around both Blago and the Senate seat, there isn't any reason to believe that Blago sold the seat to Burris. Nevertheless, I'm intrigued by your justiciability point. Perhaps the Court's experience in Bush v. Gore will make it reluctant to decide another election.

Interesting discussion. I am counting how many other nominees' vacancies might become targets of similar barricading of replacement with a Democratic party member, NM, and NY both might fit that target group; AZ has had a Dem nominated but the replacement probably ineluctably will be a Republican. Maybe Scotus makes the decision whether to demur to a political question, or not; and, if not, the NM and NY strategies deploy; three less Democratic party members' former posts repopulated.

just because Blagojevich is the kind of guy who would use his appointment power in a corrupt way doesn't mean that every appointment he makes is prima facie corrupt, does it?

Once the trout has been found in the milk, we reasonably may check your next delivery.

This should not be confused with legal analysis; nor does it decide the main question, of course.

I don't even pretend to be an American constitutional expert, but the commentaries above seem to suggest that the US Senate appears to have the power to review whether the appointment is valid. Is it not a question whether or not the Illinois Governor now being formally charged with corruption charges invalidates his power under the Ill. State Constitution to appoint a Senator? I.e. is it an invalid appointment?

Suppose Governor Caligula, who is mad, appoints Incitatus to a vacant Senate seat before being carried off raving to a psychiatric hospital. Incitatus happens to be a horse, of good character and sound temperament. Is the Senate obliged to seat (or stable) Incitatus?

A horse does not have the qualifications necessary to be a U.S. senator. So, no.

Yes, that seems to settle it. It's funny to observe the problems the Founders seem to have catered for and the ones they didn't.

Prof. Balkin, I am not sure the courts would agree with your interpretation. You are suggesting that the Senate (or House apparently) would have the right to review and nullify state elections, aside from appointments. Based upon your logic, any charge of malfeasance would be enough to deny a representative their elected seat; thus, a partisan Senate could refuse to seat a candidate if any charge of voter fraud was made. To extend such a Congressional review power to state elections seems to me to be a clear violation to, at least, the spirit of State sovereignty and representation.

States aren't "sovereign". They are subject to the Constitution as the supreme law of the land. If the Constitution permits the Senate to reject Burris, no appeal to "state sovereignty" would make any difference.

According to the international civil and political rights organization AXJ, has sent the ACLU a note to file a complaint against any Seantor or the Secretary of State White for racial discrimination against Roland Burris. See thread at:

Since practicing lawyers (and I suppose law professors) should be mindful of what a court may actually do, notwithstanding precedent, I don't think Powell v. McCormack would deter the current activist court from distinguishing it or reversing it. (Not wanting to look activist, they will probably only distinguish it.)

I don't think the case will get that far, since delay will work against Senator-designate Burris, but if it did . . .

I suspect Justice Scalia would influence the Court to adhere to the language of Art, 1, Sec. 5 and find the Senate the "sole" judge of its members' "elections[and] returns." Yes, the Court would be adding the word "sole," but after their linguistic gymnastics in modifying the Second Amendment last Term this is not much of leap.


Justice (then Judge) Scalia has already ruled

"It is difficult to imagine a clearer case of "textually demonstrable constitutional commitment" of an issue to another branch of government to the exclusion of the courts, see Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), than the language of Article I, section 5, clause 1 that "[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members." The provision states not merely that each House "may judge" these matters, but that each House "shall be the Judge" (emphasis added). The exclusion of others--and in particular of others who are judges--could not be more evident. Hence, without need to rely upon the amorphous and partly prudential doctrine of "political questions," see Vander Jagt v. O'Neill, 699 F.2d 1166, 1173-74 (D.C.Cir.), cert. denied, 464 U.S. 823, 104 S.Ct. 91, 78 L.Ed.2d 98 (1983); Henkin, Is There a "Political Question" Doctrine?, 85 YALE L.J. 597 (1976); Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV.L.REV. 1, 9 (1959), we simply lack jurisdiction to proceed."

From Morgan v. US, a DC Circuit case involving an election contest in Indiana.

However, while Morgan and other cases provide a powerful basis for arguing that a challenge to the Senate's action in refusing to seat Burris would be non-justiciable, the predicate would be to convince the court that the power to judge appointments is like the power to judge elections. If the court concludes, as it might, that the power to judge appointments is not textually committed to the legislative branch, then Scalia's reasoning becomes inapplicable.

The friend who holds your hand and says the wrong thing is made of dearer stuff than the one who stays away.
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