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Thursday, January 01, 2009

Blago, Burris, Powell v. McCormack, and the Senate's power to judge "returns"

Calvin Massey has concluded that the holding of Powell v. McCormack requires the U.S. Senate to seat Roland Burris. I believe that Massey is mistaken: In my view, the Senate may refuse to seat Burris pursuant to its power to judge "the elections" or "returns" of its members. Whether one agrees with me, however, depends on the degree to which one is willing to read Powell in light of its motivating principle of popular sovereignty.

According to Massey, "Powell v. McCormack held that the House could not refuse to seat Adam Clayton Powell, so long as he met the three constitutionally specified qualifications: age, residency, and citizenship. Powell appears to be squarely applicable to this case." But this cannot be literally correct. Suppose, for instance, that I purported to appoint, say, Saul Levmore to the Senate. Saul meets those "three constitutionally specified qualifications," but the Senate nevertheless obviously is not required to seat him, because the Senate is empowered to determine whether I am the constitutionally specified elector of Illinois' replacement senator. The Senate, in short, must be able to judge the qualifications of the elector(s) as well as the elected. Evaluating electors' qualifications is part of what it means to judge "returns."

So the question is whether the power to judge the qualifications of the electors implied by the Senate's Article I, section 5 power to judge "returns" should be construed broadly or narrowly. Can the Senate determine that, because he has been disgraced and is likely to be impeached, Blago no longer exercises the "executive authority" of Illinois under Article I, section 2? One might argue that whether Blago is truly the "executive authority" and, therefore, qualified elector of replacement Senators ought to be purely a question of Illinois law, to be determined by the Illinois Supreme Court. (This is the implication, for instance, of Smiley v. Holm, 285 U.S. 355 (1932), in which the Court held that the "legislative" power of the state under Article I, section 4 was defined by the state's constitution and, therefore, included the governor's veto power). But there is authority on the other side of the question: For instance, Justice Rehnquist's concurring opinion in Bush v. Gore, 531 U.S. 98, 112-120 (2000), suggests that, when state law performs a constitutionally specified function, then the definition of state law raises a federal question to be determined by federal actors.

It seems to me that, read in light of its persistent references to popular sovereignty, Powell v. McCormack is not germane. Powell emphasized that the House's power to add qualifications for elected officials would interfere with the right of the people of Harlem to elect whom they pleased to represent them. But it is difficult to make a similar argument that broadly construing the Senate's power to define "executive authority" of Illinois would erode the Illinois voters' sovereignty. Unlike the people of Harlem, Blago's popular mandate is purely delegated, and Blago's replacement (following Blago's likely impeachment) is far more likely to enjoy a popular mandate than Blago himself. Perhaps there is a good reason to allow a disgraced Illinois pol lock in his choice as Senator under these circumstances. But I do not see Powell v. McCormack as supplying that reason.

Posted by Rick Hills on January 1, 2009 at 02:26 PM in Constitutional thoughts | Permalink


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I don't suggest that a legitimate Article I, sec.5 refusal to seat denies fair respresentation, only that an improper use of the power disenfranchises the electorate. The question is whether legitimate grounds exist. In my opinion, they do not exist, leaving the Illinois electorate short-changed in the Senate. I assume the Senate leadership will come to its senses and seat Burris soon.

Posted by: burt neuborne | Jan 7, 2009 12:24:13 PM

Burt, doesn't the Supreme Court's observation in Barry v. United States ex rel. Cunningham that "[t]he temporary deprivation of equal representation which results from the refusal of the Senate to seat a member pending inquiry as to his election or qualifications is the necessary consequence of the exercise of a constitutional power, and no more deprives the state of its 'equal suffrage' in the constitutional sense than would a vote of the Senate vacating the seat of a sitting member or a vote of expulsion," 279 U.S. 597, 614 (1929), suggest that the state wouldn't be deprived of equal representation if, following an inquiry of the sort mentioned in Barry, the Senate refused to seat?

Posted by: Simon | Jan 6, 2009 2:30:09 PM

I should be grading, but it doesn't take much to divert me. I think that Powell's conception of popular sovereignty is in play because refusing to seat Burris leaves the people of Illinois with only one Senator at a crucial point in the development of the new adminstration's economic recovery plan. While i agree that he senate has power under Article I, section 5 to protect itself against a corrupt appointee, there is no evidence that the Burris appointment was corrupt. It can't be that something becomes corrupt because you suspect that earlier decisions by Bloggo, having nothing to do with Burris, about who to consider might have been motivated by unconsumated corruption. Under that standard, no political judgment in America could be valid. I don't think you can turn Bloggo into the ungovernor, unless the people of Illinois kick him out.

Posted by: burt neuborne | Jan 5, 2009 12:06:07 PM

There is another constitutional angle not too far down the road: whether the Lt. Governor, once he become Governor, may appoint a different Senator other than Burris. This is, after all, the scenario that Senate Democrats assume will take place -- that, after they refuse to seat Burris, the Illinois Legislature will impeach Blago, the Lt. Governor becomes the Governor by operation of law, and he will then appoint a new Senator. The critical question is whether the new appointment is constitutional?

I actually believe that to be the case, and, counter-intuitively, I do not think that the answer to that question depends on the constitutionality of the Senate's presumed rejection of Burris. The Seventeenth Amendment provides for temporary "appointments" by the executive pending the constitutionally mandated election. That plural form suggests that the executive authority of the state may recall a sitting, "temporary" Senator and replace him/her with a new "temporary" Senator. Thus, even if Burris were constitutionally entitled to his seat, once the new Governor appoints a new Senator, Burris' "right" to his seat evaporates and the new appointee is entitled to be seated as the junior Senator from Illinois. This suggests that, as a practical matter, Powell v. McCormack is only partially relevant. There is a difference in constitutional status between an elected House member and an appointed "temporary" Senator. Unlike the former, the latter has a right to his or her seat only by leave of the current executive authority of the state.

Finally, all of this has an important implication for Burris' presumed Powell-based lawsuit demanding the Senate seat him. Once the new Governor makes a new temporary appointment, Burris' presumed lawsuit becomes moot, at least with respect to any claim for injunctive relief. I suppose that Burris would still have standing to seek back pay for the few weeks that he was not seated, which suit would not be mooted by the new appointment, but the constitutional stakes of such a suit would be far less. Any counter thoughts?

Posted by: Norman Williams | Jan 2, 2009 1:30:32 PM

Is there a serious case that at the moment Blagojevich appointed Burris, he was not "the executive" of Illinois, under Illinois law or under the Seventeenth Amendment?

I wondered that the morning that the story broke. At that time, all that was clear to me was that Blagojevich had been arrested and would be charged, and Article V § 6 the Illinois Constitution provides that the line of succession can be triggered, even if temporarily, by a disability prevent the governor from serving. It seemed to stand to reason that of Blagojevich was in jail, he was disabled from serving, just as surely as if he was in a coma or was being held incommunicado by colombian rebels. Nevertheless, even if one assumes that section six is implicated and operates latae sententiae, it clearly contemplates that transfer of authority in the event of disability is temporary. When the disability is removed, the Governor may, ceteris paribus, resume office; moreover, presumably one gets in the same way one gets out. Here, the disability would have been Blagojevich's incarceration, and if that operated by itself to remove his authority, his release must likewise have operated by itself to remove the disability (by contrast, if Madigan's lawsuit had gone through and the Ill. Supreme Court had declared the governor disabled, I assume that a similar declaration from the court that he was enabled would be necesasry to resume office).

Since that took place well before Burris was appointed, however, and since Madigan's attempt at ouster, it would be tough to make the case that Blagojevich wasn't the Governor at the relevant time.

Posted by: Simon Dodd | Jan 2, 2009 11:55:01 AM

I want to say this because I so rarely get to say it: I think Sandy Levinson is right on this one. Massey goes a little too far in saying that Powell squarely addresses this case because Powell doesn't speak to the power to judge elections and returns, being the other bases on which the Senate could refuse to seat a member. Still, I agree with Massey and Levinson that the Senate has no power to exclude Burris.

Enough has already been said about the power to judge Burris' qualifications; they can, and he is. That leaves the power to judge elections and returns - a dead end in this case, too. That's the power to decide if someone who arrives at the Senate requesting admission really was the duly chosen representative of a given state. What it means to be "duly chosen" was changed by the Seventeenth Amendment. Up until that point, the deciding authority for Senators was the state legislature (that is, they were elected by the legislature). So, for example, when Senators chosen by the Governors of Montana, Washington, and Wyoming showed up in 1893, the Senate properly exercised its power to judge their elections, and excluded them. See Ralph Rossum, The Irony of Constitutional Democracy: Federalism, the Supreme Court, and the Seventeenth Amendment 36 San Diego L. Rev. 671, 706 (1999). The problem wasn't precisely that there hadn't been an election, but rather that there should have been and wasn't: Article I made state legislators the decider, the decision had been made by someone else, and the Senate could properly decide that the election was void by reason of not having happened.

After the Seventeenth Amendment, the decider became the electorate, subject to a qualification: the legislature could give the governor the power to make a temporary appointment in the event of a vacancy. I would argue that the power to judge elections simply doesn't apply to such an appointment, which would leave the Senate only with the authority to judge the return, that is, whether Burris actually was the choice of the decider (in this case the Governor). But let's say you disagree with me, and you think - like Akhil Amar and Josh Chafetz - that an appointment can be characterized as an election with a constituency of one. Still: the power to judge the election is the power to judge whether the claimant was actually the choice of the decider. That was the defect that justified Senate action in 1893: the Constitution made the decider the legislature, and the legislature hadn't chosen purpoted Senators whatshisname, thingimigummy, and whothehellremembers. Here, the state of Illinois, acting properly within a grant of power from the Seventeenth Amendment, made the Governor the decider. There is no argument that they did not do so, or that they did so improperly; there is no argument that Burris is not the choice of the relevant decisional authority (i.e. the decider, i.e. Blagojevich), and the Senate's power to judge the election runs out at that point.

In his Powell concurrence, Justice Douglas worried that Congress shouldn't be able to refuse to seat a properly-decided upon member because they didn't like the decider's choice. What Senate Democrats are asking for here is not so different: they want to refuse to seat a properly decided-upon member because they don't like the decider.

Posted by: Simon Dodd | Jan 2, 2009 11:41:56 AM

Correction: The relevant term is not "the executive authority" in article I, section 2 (which deals with House vacancies), but "the executive thereof [i.e., of the States]," in the Seventeenth Amendment. Is there a serious case that at the moment Blagojevich appointed Burris, he was not "the executive" of Illinois, under Illinois law or under the Seventeenth Amendment?

Posted by: Marty Lederman | Jan 2, 2009 9:45:01 AM

Rick: Even accepting that the Senate may judge whether the individual was appointed by the "executive authority," do you actually think it would be legitimate -- a serious constitutional determination -- for the Senate to conclude that Blagojevich is not the "executive authority," under either Illinois law or some notion of what "executive authority" means under Article 1 itself, simply because he "has been disgraced and is likely to be impeached"?

Did Nixon no longer exercise the executive authority -- were his appointments, vetoes and pardons invalid -- as of the late Spring or early Summer of 1974?

Posted by: Marty Lederman | Jan 1, 2009 2:47:40 PM

I agree that the Senate is empowered to judge the legality of the process by which Burris was appointed. And I agree that the federal courts might not second-guess the Senate's judgment. And I agree that refusing to seat Burris might be better for popular sovereignty. But let's not kid ourselves.

The Seventeenth Amendment authorizes states to let governors fill vacant Senate seats by appointment. Illinois has authorized its Governor to do so. Blagojevichis is the Governor of Illinois. Blagojevich has appointed Burris. There is no plausible legal basis for the Senate to refuse to seat Burris, and any Senator who votes to refuse to seat Burris is voting to violate the Constitution.

Posted by: James Grimmelmann | Jan 1, 2009 2:42:01 PM

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