More on appointments madness: A Response

Rick posted on the constitutional mess that is the effort to fill the Senate seat recently vacated by Barack Obama. Norman Williams gave some detailed comments and asked for counter-thoughts; I decided to write mine in a separate post.

After the jump, I quote his comment in full in italics, then give my response:

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?

As a constitutional matter, I think this overreads the plural of appointment(s) in the text. The entire vacancy clause is framed in the plural: "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." (emphasis mine). This clause basically carries over the language of the original Art. I, § 3, cl.2 (selection of Senators by state legislatures).

The plural appointments simply matches the plurals "vacancies" and "writs of election." Unless we understand this only to apply when there are multiple vacancies within a single state (unlikely) or that the executive also could issue multiple writs of election for a single vacancy (impossible), the plural does not carry that much weight. An appropriate reading is that there will be the same number of appointments and elections as vacancies--one appointment and one writ of election for each vacancy. And once we limit the force of the plural, the Amendment calls for the appointee to serve until the vacancy is filled via the election.

Second, I do not agree that there is a distinction between an elected and appointment federal legislator. Both are entitled to the office by operation of state law and a determination made by a state executive officer--either that this is the person she is appointing to the position or that this is the person who she certifies has prevailed in an appropriate election. The chosen legislator then has a right to the seat for the duration of the appropriate period as determined by state law.

Finally, even accepting Norman's reading of the Amendment and the possibility of multiple appointments, this all becomes a question of state law, which determines whether the executive can appoint and the terms under which he could do so. And Illinois clearly does not contemplate multiple appointments. Illinois law phrases the power grant in the singular: "When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election". So if the plural is significant in the Constitution, the singular must be equally significant in the Illinois statute in limiting the governor to only one appointment, with the appointee remaining until the result of the special election is certified.