Balkinization  

Monday, January 05, 2009

Further lessons on why structures matter

Sandy Levinson

The farce currently underway in Springfield and DC can be traced, among other things, to the fact that Illinois, like most states, has rejected the "unitary executive." That is, various executive officials are elected independently of the governor and are in no way subject to control by the governor. Whatever one thinks of the "unitary executive" at the national level, no reasonable person can argue that it reflects some "American" approach to government, since it is the US government that is in fact the outlier. If Illinois did have a unitary executive, then presumably the governor could simply fire an insubordinate secretary of state who refused to sign the letter of appointment. (Or is the argument that the secretary could refuse to leave on the grounds that the unimpeached governor is no longer the "real governor" who has the authority to hire and fire members of his administration?)

In any event, a story in tomorrow's times on the Senate's refusal to accept Burris's creditials sets out the issue very clearly:

After reviewing the appointment letter presented by a representative of Gov. Rod R. Blagojevich, Nancy Erickson, the secretary of the Senate, found that the paperwork did not comply with Rule II of the Senate’s standing rules, which requires signatures of both the governor and the secretary of state.


The Illinois secretary of state, Jesse White, has refused to sign, saying the appointment is invalid because of the federal corruption investigation surrounding the governor and what prosecutors describe as his efforts to sell the Senate seat....



Given my own "constitutional protestantism," I rather like the fact that every public official is suddenly asserting the ability to decide on his or her own what are in fact quite interesting and complicated constitutional issues. That being said, I still don't understand how one of the Senate's standing rules can in effect give someone other than the governor the de facto ability to veto a gubernatorial appointment that meets all relevant state law requirements, in a context where the state official who refuses to co-sign appears to be violating the face of the relevant Illinois statute that imposes a duty to sign. I must say that I wish Sen. Reid had stood up to George W. Bush with the same vigor that he is standing up to the feckless Gov. B.

I happily concede that the Senate could reject the appointment if it had reason to believe that it was in fact procured through bribery or some other criminal misconduct. But, as everyone seems to concede, there is no such evidence. How important is it, incidentally, that the Governor is accused of trying to sell the seat? What if he were accused, instead, of spousal abuse or drunken driving? That would also discredit him in the eyes of most people. Would it also allow the secretary of state to refuse to sign the letter of appointment and the Senate to refuse to seat the senator-designate? Or is the specific misconduct important, so that he retains all other powers (until impeached) except appointing a senator to fill the vacancy?

UPDATE: I should note that the "reader" who informed me about the relevant Illinois law was Jeff Norman, who has in fact published two illuminating blogposts on the Huffington site discussing the matter.



Comments:

Umm, "...that imposes a DUTY to sign"

And, while we're at it, Gov. B, while hapless among several other things, has plenty of feck.
 

Basically, for a governor's appointments, the Secretary of State in Illinois acts as a super notary public. Perhaps if he were obviously mentally (as opposed to politically) impaired, there may be a case that White could refuse to sign. However, the Illinois Supreme Court already shot down the Illinois' AG's attempt to have Blago declared unfit, so it appears we now have a political high wire act, with the US Senate, Burris, Blago, and the Illinois Legislature swaying on interconnected wires, rocking back and forth to see who will drop first.
 

For some reason I understand Sandy on this point. This situation almost proves the problem we have with our system: once certain marks have been set you can't undo them. The problem is only the result of second thoughts. You could boil down the formulation to something like: what if some jerk-wad hadn't been elected and didn't have the power to do x-y-z?

The problem is that someone always has the power to do x-y-z.

If the particular individual who has that power is not known, we have a huge problem.

So the most important point in maintaining a constitutional government is to follow the constitutional outlines of power.

We must assume that a constitutional officer owns all the powers of her/his office and that any such exclusive powers belong exclusively to that officer.

Otherwise we have an ambiguous and ineffective government.

Once we elect someone to office, they execute their duties such that their decisions are not reversible. If we had the power to reverse their decisions, how far back would that power extend?

The truth is that we can't reverse the decisions made by constitutional officers, we can only remove them from office to prevent them from making future decisions, good or bad.
 

It seems to me that the position is arguably very simple indeed. If the Governor is not unable to make a valid appointment because of some disability known to law, then mandamus will issue to compel the Secretary of State to do the necessary. It does not seem to me that the issue should take a Judge terribly long - certainly no longer than a day.
 

This is an example of what deep pocket litigants (actual or potential) can do to thwart fairness, justice, equality, etc. Isn't there a message in Marbury v. Madison that would seem to apply? Let's consider the definition of conspiracy as including an agreement or undertaking by two or more persons to do something legal in an illegal manner. Can a case be made that the Illinois Secretary of State and Sen. Dick Durbin (and other Senators) have so conspired? Surely there is conscious parallelism of action at a minimum. There should be no Profiles in Courage awards for those participating to thwart Burris' appointment. (Take a look at today's LATimes for an OpEd by a constitutional scholar who in plain language explains why the Senate should accept Burris' appointment.)
 

Does anyone really believe that at the level of politics in question the positions are not always bought and sold?

"Pity the poor, diseased politician. Imagine: to spend your days and expend your efforts making rules for others to live by, thinking up ways to run other lives. Actually to strive for the opportunity to do so! What a hideous affliction!" - From The Second Book Of KYFHO (F. Paul Wilson, “An Enemy of the State”
 

I assume SL is not naive to think the Senate Dems, or perhaps the Senate itself, would on this reason alone not seat Burris. At least, after waiting a few days to make everything official.

As others have noted, the technical matter at hand is not too controversial, and to the degree the "super notary public" (I like that; big NP on his chest?) overstepped his bounds, it can be dealt with fairly quickly. After all, this is not the REAL reason he is not being seated.

SL also notes: "I happily concede that the Senate could reject the appointment if it had reason to believe that it as in fact procured through bribery or some other criminal misconduct."

IOW, he wants to add to the text of the Constitution, which says "judge" not "reasonable cause" or whatnot. In fact, to be totally literal, the 17A (which some feel is important, though Art. I also has an executive appt provision) says noting about the Congress judging elections etc. at all.

And, contra Walter Nixon v. U.S., SL feels that Congress (akin to a jury declaring innocence) does not have plenary power to make such a choice, but what is "reason" enough is not only up to them.

He isn't alone on this, of course, given the scorn others have for what is going on.
 

"Does anyone really believe that at the level of politics in question the positions are not always bought and sold?"

I learned in 1952 of the "tip of the iceberg" theory of politics as more details of Richard M. Nixon emerged as he campaigned with Ike. We see only the tip. Since then, money has become even more important in campaigning. Perhaps global warming may expose more of the iceberg of politics. Those elected officials "J'accus-ing" Blago may be concerned with their own political consciences. Consider Gov. Richardson's recent withdrawal and what's starting to be revealed by his camp and Obama's camp with respect to the investigation of state contracts to a political supporter of Richardson. By the way, Richardson cannot "beard" his way out of this and will have to come clean. And so may many other elected officials as more of the political iceberg reveals benefits that coincidentally flow to campaign contributors. "Bought and sold" may be a tad harsh for a quid pro quo but like in the game of horseshoes close enough counts.
 

I meant to say "naive enough" ... as to the last part, like a jury making a bad decision, the judgment is different than the power to act.

The Senate can be wrong here and still be acting legally. This would not be news.
 

"And, contra Walter Nixon v. U.S., SL feels that Congress (akin to a jury declaring innocence) does not have plenary power to make such a choice, but what is 'reason' enough is not only up to them."

Shorter: "Senate nullification?"
 

How important is it, incidentally, that the Governor is accused of trying to sell the seat? What if he were accused, instead, of spousal abuse or drunken driving? That would also discredit him in the eyes of most people.

Political credibility has no legal effect. Why would you think otherwise?

This exercise is simple lawlessness to spare the Dem Party political embarrassment.
 

is the specific misconduct important

That's for the Secretary to decide. As far as I can tell.

If I were he, I'd say misconduct related to appointments would be relevant, and unrelated misconduct probably irrelevant.
 

The case for mandamus against White is oddly similar to that presented in Marbury itself. There, Marshall held that mandamus could not issue because the statute was unconstitutional. I'm guessing a different result here.
 

the Secretary of State in Illinois acts as a super notary public.

Anyone who has ever needed an apostille would agree!
 

Though I disagree with those who say there is not a "scintilla" of proof here, you can say "Senate nullification," especially since I brought up the jury parallel.

The two cases aren't quite the same, and I can quibble, but it works all the same.
 

This exercise is simple lawlessness to spare the Dem Party political embarrassment.

I didn't know that conservatives like Bart were such great fans of Warren Court judicial activism, e.g., Powell v. McCormick.
 

Dilan:

Powell v. McCormick is actually one of the Warren Court's few excursions into actually applying the Constitution as it was written. What is ironic about Powell is that a Court that made a virtue out of rewriting the Constitution denied Congress that same prerogative.
 

That's an interesting position, Bart, but the problem is that the Qualifications clause has always looked to me to be as close to the paradigmatic political question as you can get-- here you have a clause that specifically commits a decision to a coordinate branch of government, so how is it possibly in the Judicial Power of Article III.

The funny thing is that's how most conservatives viewed it at the time. The Warren Court thought that screwing over Adam Clayton Powell was a bad result, so they threw out the political question doctrine to achieve it.

I guess, however, that time heals all wounds.
 

"I guess, however, that time heals all wounds."

Or "Time wounds all heels."
 

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