Tuesday, January 06, 2009

Not So Fast, Harry

Roland Burriss, Illinois Governor Rod Blagojevich's defiant selection to fill President Elect Obama's senate seat, is traveling to Washington to be sworn in as the junior senator from Illinois. Senate Majority Leader Harry Reid has made it clear that he considers the appointment tainted by the governor's corruption charges and that Mr. Burriss will not be seated. Senator Reid claims the US Constitution allows the Senate the right to refuse Mr. Burriss's appointment.

At least one legal scholar, Erwin Chemerinsky (Dean of UC-Irvine's law school), disagrees. In an op-ed column in today's Los Angeles Times, Dean Chemerinsky provides a clear and persuasive argument that Senator Reid is in fact on shaky grounds in trying to block Mr. Burriss's appointment.

Like it or not, Illinois Gov. Rod R. Blagojevich has the legal authority to appoint Roland Burris to the U.S. Senate, and Burris, the state's former attorney general, should be allowed to take the seat vacated by President-elect Barack Obama. Senate Democrats are on weak constitutional ground in trying to deny a seat to a properly selected individual. Their claim to the power to exclude a lawfully chosen senator could create a dangerous precedent.

The relevant provision of the Constitution is found in Article I, Section 5. It says: "Each house shall be the judge of the elections, returns and qualifications of its own members." But the Supreme Court has been clear that these words do not bestow on the House or the Senate unfettered discretion in deciding whom to seat.

The Supreme Court case to which Dean Chemerinski refers is Powell v McCormack, brought by Adam Clayton Powell against then Speaker of the House John McCormack when the House sought to keep Mr. Powell from taking his seat on grounds that he had been found to have falsified records concerning travel expenses, and there were allegations that he had made illegal payments to his wife. The Supreme Court held "[t]he Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets the requirements for membership expressly provided in the Constitution."

Dean Chemerinsky makes it clear that Roland Burriss does meet those requirements.

Further, he dismisses the argument that Gov. Blagojevich's appointment was flawed. The Constitution allows for such an appointment to fill a vacant seat by a state's executive authority. In Illinois, that would be the governor, and, at the time of the appointment, that would be Blagojevich. Like it or not (and the governor's appointment was a clear extension of his middle finger to the rest of the world), Blagojevich had the legal power to make that appointment.

For the Senate to refuse to seat Mr. Burriss, then, is clearly unconstitutional, according to this line of reasoning.

Allowing the Senate to exclude Burris on any except the narrowest of grounds would create a dangerous precedent. It could open the door to the Senate or the House overturning the will of the people and excluding representatives under one or another pretext. If Burris -- whose appointment meets the legal test, no matter what you think of Blagojevich -- is not seated, other properly elected (or appointed) representatives also are at risk.

The Supreme Court's conclusion [in Powell v McCormack] could not be clearer or more on point: "In short, both the intention of the framers, to the extent that it can be determined, and an examination of basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote."
[Emphasis added]

Dean Chemerinsky's conclusion contains within it an irony that bites deeply:

...the taint of Blagojevich's alleged crimes does not justify ignoring the Constitution. For the last eight years, the Bush administration has ignored or twisted the Constitution to serve what it believed were higher ends. It would be an enormous mistake, as a new administration prepares to take charge, for Democrats to send the Senate down that same path.

After eight years of giving away the powers of Congress to the Bush administration, the Senate's Democratic leaders now want to engage in a power-grab of its own in defiance of the Constitution it had pretty much forgotten about during the Bush era. And this sudden exercise of spine is being directed against a fellow Democratic.

There is something dreadfully wrong and terribly disheartening in this picture.

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Blogger Cosa Nostradamus said...

Say what you will, Blago certainly has that Serbian sense of humor. Talk about a spanner in the works; and nicely placed! Bwa-haw-hah-ha-ha-ha!

His last major act may be to replace the Senate's only African-American with another, perhaps even more qualified, at least by resume. It hardly balances out what all else Blago has been accused of (not convicted), but it will reverberate. Burriss strikes me as a time-serving Party hack. But that would describe most of Congress.

Burriss prob'ly would have been on somebody's short-list anyway. Little Harry Reid should know better than to mess with the big boys out of Chi-Town. He never had the cojones to face off the Texans: He should just go back to Nowhere, NV, and let some real change happen, for a change.

I'd rather see a black hack in that millionaires' club than any more DINO's like Reid. At least the poor old guy is showing some brass by standing up to Li'l Harry. Would that his predecessor were doing the same.

5:21 AM  
Blogger Shaw Kenawe said...


You're spot on.

Hasn't P-e Obama got enough crap to face in two weeks without the Congressional Dems making more trouble for him?

Can't they at the very least give him some breathing space?

Reid and Pelosi have been two huge disappointments.

5:38 AM  
Blogger Woody (Tokin Librul/Rogue Scholar/ Helluvafella!) said...

Reid and Pelosi have been two huge disappointments.

They perfectly illustrate the Iron Rule of Institutional Power: People who hold power in Institutions will ALWAYS tolerate diminishment of the power or authority of the Institution if their own power withion the Institution remains unaffected...

7:56 AM  
Blogger Cosa Nostradamus said...

Like it or not, legally, they're stuck with this guy. Rather than continuing to inflate this embarrassing balloon, they should let it fly. What's wrong with one more vote in the Senate?

It's time the "Dems" got off defense and started playing offense in Congress: No money for Red States unless they vote right. If they want a war, make it one with real blood: Starve them into submission. Hey, it worked for Sherman. But then CONGRESS let the Confederat's back into power, and now we have Dixiecrats and small-State cornpones still dictating all of our policies, over a hundred years later. Enough!

The only way to handle a bully is to face him down. Burriss ain't the problem. Reid is.

And watch him back down on this one, after highlighting it for the Repukes! It's time to put THEM on defense, permanently. Step one: Fire Reid. Obama needs to get tough on Congressional DINOs now, or we're all screwed. Assuming he's not a DINO himself...

4:07 PM  

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