Hamilton, Madison, and Jay

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Monday, January 5, 2009

Surprise! Senate rejects Burris

HT to Slublog at AoSHQ for the next chapter in the unfolding drama surrounding Blagojevic, Burris, and Harry Reid's stupidity.

From CNN's Political Ticker blog:

The secretary of the U.S. Senate on Monday rejected the certificate of appointment for Roland Burris, named by Illinois' controversial governor to fill Barack Obama's Senate seat, according to an aide to the secretary.

The aide said Secretary of the Senate Nancy Erickson rejected Burris' appointment because it does not conform with the Senate rule requiring that the secretary of state — in this case, Illinois Secretary of State Jesse White — must sign the certificate of appointment along with the governor.

White has declined to sign the certificate, siding with some Senate Democrats who say Burris should not be seated because of the cloud over Gov. Rod Blagojevich, who is accused of trying to sell Obama's Senate seat.

According to a Democratic source and a Democratic Senate leadership aide, without the signed certificate Burris will be denied access to the Senate floor.

But Burris insists he has the legal right to serve as senator, and has said he will appear at the Senate's door Tuesday.

"I am going (to Washington) to be seated. I am the junior senator from the state of Illinois — that's all I can say," he said Monday at an airport news conference in Chicago before leaving for Washington.

Now Reid has said he's going to block Burris' entry into the Senate, and refuse to seat him. What's Burris' response? Aside from filing a writ of mandamus to the Illinois state supreme court, he plans to show up on Tuesday:

Burris said Monday that he's not bothered by Erickson's move because "the appointment's legal."

"What has been done here is legal. That's legal. I am the junior senator from Illinois, and I wish my colleagues and the press would recognize that," he said.

Burris said he plans to appear at the chamber door Tuesday, even though he expects to be denied entry. He also said he was surprised by all of the controversy surrounding the appointment.

The ball is now in Reid's court. But I'd like to point out a couple of things for those cheering on Reid's idiotic attempt to ban Burris from being seated. First, there is the Constitution question. While the news reports continue to push Article I, Section 5 regarding the Congress's power to be judges of their elections, everyone seems to be overlooking one little "loophole" in this, namely the Seventeenth Amendment which states the following regarding vacancies in the Senate:

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.

Governor Blagojevic DOES HAVE the power to make an appointment. The Illinois legislature wasn't able to strip that power from him, hence their move to impeach him. The Senate should have no say in this, in terms of being judges of elections, because NO election took place for the seat. Additionally, there is the precedent of Powell v. McCormack. I'll let Marcie explain this, as she did so this past week:

Powell v. McCormack, which was decided in 1969, set the precedent for this issue. Powell, a duly-elected member of the House, was embroiled in a scandal, yet still won reelection. The Speaker at the time refused to seat him, and this case ended up before the Supreme Court. Chief Justice Earl Warren wrote the majority opinion, and in it he concluded that:

"The Constitution does not vest in the Congress a discretionary power to deny membership by majority vote," wrote Chief Justice Earl Warren. Congress may "judge only the qualifications set forth in the Constitution," he said. ...

Warren said in his opinion that the Senate's power over its members "is identical" to that of the House.

Checkmate, Harry. You can't prevent him from being seated. He can delay it by referring it to the Rules Committee to verify his qualifications, but that's positively asinine. Again, I refer to the Constitution, Article I, Section 3, Clause Three:

No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.

Pretty cut and dry, huh? They can cite the Senate rules all they want, and the secretary of state can stand on his soapbox and protest, but legally they can't deny Burris his seat. (Need we remind these fools caterwauling about this that there is no higher law than the Constitution itself. Senate rules don't trump the constitution. They never have, and they never will.) He was appointed to it. The appointment is legal. And should this go as far as the Supreme Court in its challenges, we have confidence the high court won't reverse itself on the precedent established by the Warren Court back in 1969. Of course, we doubt it'll go that far. Reid's bluff has been called, and by continuing to act like the petulant brat he is only serves to do him significant PR damage in the long run. The last thing Reid wants to see on the news at night are legal scholars telling him he's dead wrong on this issue, and embarrassing the 111th Congress before it even gets going.

Publius II


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