January 7, 2009

The Senate must seat Roland Burris.

Says Walter Dellinger, who was a Supreme Court law clerk (for Hugo Black) when the Supreme Court decided the Adam Clayton Powell Jr. case (Powell v. McCormack):
In Justice Black’s view, one of the worst abuses of power in England resulted from parliamentary majorities wrongly refusing to seat dissident legislators. That experience makes me very wary about the Senate’s barring a person from taking a seat unless its authority to do so is clear. Here it is not.
Dellinger notes that Blagojevich is the governor, he has the appointment power, and he has exercised it:
The charges that he sought bribes to appoint certain candidates to the Senate do not automatically render illegal other official acts of his office like signing laws or pardoning criminals. And because there is no evidence that a bribe was solicited from, or proffered by, Mr. Burris, his appointment is presumptively lawful.

Nor do the other arguments against Mr. Burris’s appointment hold up. The contention by the Democratic leadership that Mr. Burris can be denied a seat because the Illinois secretary of state refuses to sign his appointment papers is without merit — it would confer upon secretaries of state absolute veto power over governors’ appointments.
The idea of delaying and giving the Illinois legislature a chance to impeach Blagojevich makes no sense, because Burris has been validly appointed, so he's in until the term is up in 2010.

There is still a separate question whether Burris can get into court (as I noted last Thursday). Dellinger says:
The Supreme Court decision in the Powell case did leave open the possibility that a Congressional decision finding that a member was not properly elected — in this case, appointed — might be a “political question” immune from judicial review.

But that some reasons for denying Mr. Burris this seat might not be subject to review by the courts means that the Senate should take more care, not less.
Exactly. When the court finds a case nonjusticiable under the political question doctrine, it is because it reads the Constitution as committing a particular constitutional question to one of the political branches of government. It is decidedly different from rejecting a Constitution-based claim on the merits. It is saying that some other branch of government is the final authority on the meaning of a part of the Constitution, and that indeed means that the nonjudicial branch that has this responsibility must look at the Constitution and figure out what it means and then follow it.

It absolutely does not mean that the other branch can simply carry out its political will.... something you'd never guess from watching Harry Reid.

34 comments:

Fred4Pres said...

I predicted that Reid and Obama were secretly happy that this Blago pick of Burris avoided the risk of a special election, turns out I was right. They just had to protest enough to give themselves cover.

Fred4Pres said...

Now they just need to complete the trifecta of getting in Princess Caroline and the back half of Caligula's Minnesota horse and the circle of trust is complete!

garage mahal said...

I AM the mofo Junior Senator from Illinois, Jack.

LOL.

Lem said...

There’s is room at the inn.

Simon said...
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Simon said...

I agree with most of this, with two caveats. First, the unexamined assumption that the power to judge elections carries over to the power to judge appointments seems shaky to me.

Second, with regard to the theory that requiring the Secretary of State seal the commission raises Seventeenth Amendment problems, while I agree with Dellinger on this point, it strikes me as containing an unexamined assumption, too. The Seventeenth Amendment says that "the legislature of any State may empower the executive thereof to make temporary appointments"; does "the executive thereof" mean "the [chief] executive" (i.e. the Governor, as Dellinger and I assume), or "the executive [branch]"? If construed broadly in the latter sense, it is far less clear that a state law subjecting the Governor's choice to a functional veto by another executive branch actor is ultra vires. I think that this theory is too novel to prevail, cutting against the established, customary understanding of the text (a traditional gloss, I've argued many times, will often settle an ambiguous question), but the text of the amendment does suggest it as an argument.

Simon said...

Let me also be the first to reccomend that Obama appoint Dellinger to one of the Fourth Circuit vacancies (and to predict he will).

Freeman Hunt said...

Why are they going out so far on a limb with Burris? Sure, Blago is bad. Any evidence that Burris is bad? Unless there is, I see no point to Reid's behavior.

Unless Fred4Pres is right.

David said...

The lack of outrage--in MSM and elsewhere--over Reid's blatant violation of the law is disappointing.

My prediction is that, even if Reid wins reelection in 2010, he will not survive as majority leader after that.

Michael_H said...

Interesting that Harry Reid caved on seating Burris about 48 hours after Nancy Feinstein said she believed Burris should be seated.

Ann Althouse said...

Simon said..."First, the unexamined assumption that the power to judge elections carries over to the power to judge appointments seems shaky to me."

The assumption occurs because we're asking what the Senate can do. Suppose someone who wasn't appointed at just showed up and claimed to be the appointee. Wouldn't the Senate have to be the judge of that? I think it's properly implied. Then the question is how broad is that power? Does it include deciding that the Governor is a bad guy? I certainly don't think so, but the Senate must do the initial interpretation and should take that seriously as a legal question that must be answered separately. Then the question is whether a court can review that. That's the issue of the political question doctrine.

"Second, with regard to the theory that requiring the Secretary of State seal the commission raises Seventeenth Amendment problems, while I agree with Dellinger on this point, it strikes me as containing an unexamined assumption, too. The Seventeenth Amendment says that "the legislature of any State may empower the executive thereof to make temporary appointments"; does "the executive thereof" mean "the [chief] executive" (i.e. the Governor, as Dellinger and I assume), or "the executive [branch]"? If construed broadly in the latter sense, it is far less clear that a state law subjecting the Governor's choice to a functional veto by another executive branch actor is ultra vires. I think that this theory is too novel to prevail, cutting against the established, customary understanding of the text (a traditional gloss, I've argued many times, will often settle an ambiguous question), but the text of the amendment does suggest it as an argument."

Good point, but the Illinois statute, I think, just gives the SOS a ministerial duty. It's hard to picture the state law giving the SOS a veto, so your question would never arise in real life.

Henry Buck said...
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Henry Buck said...

Prof. A. -

I wholeheartedly agree with your view of how the branches of governemnt should act in their Consitutional roles.

Of course, as a moral matter, the Senate should "look at the Constitution and figure out what it means and then follow it" rather than just carrying out its "political will." That point would carry more weight, however, if the Judicial Branch itself would adhere to it.

Frank said...
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Frank said...

From a Chicago CBS affiliate story on the agreement to seat Mr. Burris

"Meanwhile at an unrelated news conference, Obama declined to take a position on whether Burris should get the Senate seat."


declined to take a position... did he now?

Simon said...

Ann Althouse said...
"Suppose someone who wasn't appointed at just showed up and claimed to be the appointee. Wouldn't the Senate have to be the judge of that?"

Yes, under the power to judge the return. If the return is missing, it's obviously deficient, just as the 1893 exclusions properly arose from an election that was missing and thus obviously deficient. At most, it seems to me, the Senate has the power to judge whether Burris was actually appointed by the governor; I think that falls under the return-judging authority, but even on the assumption that an appointment is an election with one constituent, as Amar & Chafetz theorized in the slate article you linked to the other day, I'd reach the same conclusion.

"Then the question is how broad is that power? Does it include deciding that the Governor is a bad guy? I certainly don't think so, but the Senate must do the initial interpretation and should take that seriously as a legal question that must be answered separately. Then the question is whether a court can review that. That's the issue of the political question doctrine."

The answer to the question is certainly committed to the Senate, but the content of the question - the parameters of the question(s) the Senate is allowed to answer, the matters it's authorized to judge - seems justiciable to me. That seems consistent with Nixon, and although Powell could be argued to be a different case in some particulars, its reasoning seems to directly answer the question here unless we're prepared to limit it to its facts.

I agree with you that the SecState's duty is ministerial, so the question doesn't arise here.

traditionalguy said...

Has anyone demanded to see Blago's birth certificate yet?

Simon said...

Of course, I should say, I agree that the duty is ministerial and so the other question won't arise assuming the Supreme Court of Illinois doesn't decide that the state law gives the secstate discretion, and assuming the Senate Democrats don't buckle into a humiliating climbdown agreement to seat Burris in the meantime.

Michael_H said...

Speaking of Gov Blago - Do you think this might have influenced Blago's choice of hair style?

rhhardin said...

It absolutely does not mean that the other branch can simply carry out its political will

Nothing prevents it.

Ann Althouse said...

"Nothing prevents it."

But that is emphatically not a reason to set aside the legal issue as insignificant. It is important -- and it has power as a political argument -- to say that there is a legal question and to express opinions about the quality of the legal interpretation (or the failure to deal with the legal issue).

rhhardin said...

It's like Congress can impeach and remove the President.

It's voters that prevent it, and then only the next time around. The media narrative that has legs is determinative.

There's no feeling that Congress takes the Constitution seriously; it has only the status of a tradition, and traditions remain traditions only if they're chosen as well as imposed.

Simon said...

rhhardin said...
"Nothing prevents it."

The theory goes that members of the political branches take an oath to uphold the Constitution, too, and their sense of honor will require them to consider in good faith constitutional limits on their own power.

The snide response is to find this laughable - but why, precisely? Because politicians are self-interested, self-aggrandizing intellectual lightweights with little regard for oaths generally or the Constitution specifically? And there aren't self-interested, self-aggrandizing intellectual lightweight judges?

As it happens, I do think that the defense of the structural constitution is too important to leave to self-interested politicians (Garcia v. San Antonio Metro. Transit Authority is a particularly egregious example of judicial abdication; see also Althouse, Enforcing Federalism After United States v. Lopez, 38 Ariz. L. Rev. 793, 813 (1996) (noting that judicial restraint is problematic when measured against the judiciary's duty to say what the law is)). I do believe very strongly that the judiciary can and should defend the structural constitution, when called to do so in an appropriate context; indeed, it only exaggerates my position a little to say that I think Jesse Choper had it precisely backwards (he said the courts shouldn't waste their institutional capital and limited resources on structural questions because individual rights are more important). Nevertheless, it's important to recognize that in preferring that result, I'm picking my poison, not selecting a cost-free option.

AlphaLiberal said...

I agree they should seat him and be done with it. It's awkward, tainted, etc but it IS the law.

Let's restore the rule of law in this country after 8 years of a rogue Presidency.

AlphaLiberal said...

Besides, if we open this door now, it will be open for subsequent cases where Senators want to pick and choose who they "allow" to be seated.

Lot's of mischief can be made that way,

Freeman Hunt said...

Besides, if we open this door now, it will be open for subsequent cases where Senators want to pick and choose who they "allow" to be seated.

Exactly.

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Stephanie said...

Besides, if we open this door now, it will be open for subsequent cases where Senators want to pick and choose who they "allow" to be seated.

For the dems that's a feature not a bug... until they are again minority party. Then, not so much...

Simon said...

AlphaLiberal said...
"[I]f we open this door now, it will be open for subsequent cases where Senators want to pick and choose who they 'allow' to be seated. Lot's [sic] of mischief can be made that way"

Yep - exactly what Douglas warned about in Powell.

Pissed Off Hillbilly said...

Hugo Black?
Wasn't he the Justice from the KKK?

Simon said...

Pissed Off Hillbilly said...
"Hugo Black? Wasn't he the Justice from the KKK?"

Oh, please. Anyone who knows anything at all about Justice Black knows how spectacularly ignorant that statement is. You think Thurgood Marshall would have preferred "the Justice from the KKK" to swear him into office over the author of Brown v. Board?

Balfegor said...

In Justice Black’s view, one of the worst abuses of power in England resulted from parliamentary majorities wrongly refusing to seat dissident legislators.

Ah, yes. Regicide.

BJM said...

AlphaLiberal said:Besides, if we open this door now, it will be open for subsequent cases where Senators want to pick and choose who they "allow" to be seated.

Lot's of mischief can be made that way,


We're way past "mischief" and into low comedy.

Balfour said: In Justice Black’s view, one of the worst abuses of power in England resulted from parliamentary majorities wrongly refusing to seat dissident legislators.

Burris is not a dissident, a Blue Dog or a DINO, he is a mainstream Democrat.

Schaz said...

Ann, one of these days could you write a post explaining law clerks?

Not being in the legal profession, I'd always assumed a law clerk was some low-level underling who did the boring paperwork and other menial tasks. But I know that can't really be correct since a person's experience being clerk for this or that judge is often touted as if it were a prestigious post.

Just looking to be educated on the topic, kthxbye!