Dec 31, 2008

Can the Senate reject Rod's Choice?

Harry Reid announced after Rod Blagojevich's December 9th arrest that should the governor attempt to fill President-elect Obama's the Senate vacancy, the Senate Democratic Caucus was prepared to reject the choice and not allow him to take his seat, citing Article I, Section 5 of the U.S. Constitution:

Please understand that should you decide to ignore the request of the Senate Democratic Caucus and make an appointment we would be forced to exercise our Constitutional authority under Article I, Section 5, to determine whether such a person should be seated.

That's all well and good, Harry. The problem is that your authority isn't nearly as extensive as you seem to think.

The text of the referenced section reads:

Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.

That seems simple enough. I, too, would try to take this power for a spin if there were no precedent on it. Unfortunately, nothing is new under the sun, and the Supreme Court already determined this in 1969.

The case was Powell v. McCormack. The situation was thus: Adam Powell was under a mire of scandal (accused of misappropriating Congressional funds, paying his wife from his House staff salary, and not paying a judgment made by a lesser New York court). Nonetheless, he was reelected in 1966 as the representative from the 18th District of New York. The Speaker of the House, John McCormack, asked Powell to not take his seat. The House then passed two resolutions--one ordering an investigation, the other stripping him of his power and ordering the seat vacant. Powell sued, saying that he was qualified to be a member (according to the three qualifications listed in the U.S. Constitution), duly elected by the people, and therefore entitled to his seat.

Chief Justice Earl Warren wrote the majority opinion for the case (which was a 7-1 decision; Potter Stewart dissenting, Abe Fortas not voting since he had resigned from the court a month before the decision was handed down). He determined that Congress's authority was severely limited in terms of 'exclusion' of members (see bolded segment below).

Had the intent of the Framers emerged from these materials with less clarity, we would nevertheless have been compelled to resolve any ambiguity in favor of a narrow construction of the scope of Congress' power to exclude members-elect. A fundamental principle of our representative democracy is, in Hamilton's words, "that the people should choose whom they please to govern them." 2 Elliot's Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications would be to ignore Madison's warning, borne out in the Wilkes case and some of Congress' [p548] own post-Civil War exclusion cases, against "vesting an improper & dangerous power in the Legislature." 2 Farrand 249. Moreover, it would effectively nullify the Convention's decision to require a two-thirds vote for expulsion. Unquestionably, Congress has an interest in reserving its institutional integrity, but, in most cases, that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the 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....

Further, analysis of the 'textual commitment' under Art. I, § 5 (see Part VI, B (1)), has demonstrated that in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.

Roland Burris is a citizen, he resides in Illinois, and he is over the requisite age of 30. Rod Blagojevich is under investigation; he has neither been charged nor convicted. Therefore, he retains all, I repeat, all the powers of the governor, including the statutory authority to appoint a U.S. Senator in case of vacancy. The Senate, in my opinion, has no right to exclude his choice. (note: I'm not saying that Blago isn't a scum bag, since I think he is. I'm just saying that procedurally, as a matter of law, the Senate doesn't have a leg to stand on.)

Is that the end of the story? Definitely not. A host of options remain for our dear Mr. Reid. The Democratic Caucus can refuse to appoint Burris to any committee posts, effectively giving him no say in lawmaking. He can choose not to invite Burris to the Democratic caucuses where they devise strategies. Mr. Burris would be left with only his right to speak and vote on the floor.

Also, if they really don't want him there, the Senate, with 67 votes (2/3 for the mathematically-impaired), can expel him. That right, under the Constitution, is absolute. It doesn't matter who or why; either house can expel anyone from their ranks for any reason, so long as they have a 2/3 majority. This might look bad politically, though, since usually members are considered for expulsion due to their own scandals, not the scandals of the governor appointing them to a vacant seat.

All in all, it should be interesting to see what happens. Sen. Reid's hands aren't necessarily tied, but it would be foolish (and unconstitutional) for him to attempt Burris's exclusion from the Senate rather than other means.

For additional info, see my hattips on this: The Arena, and NRO

Update: The Senate is apparently looking at referring his appointment to the Rules Committee, which would give them 90 days to figure out what to do, since, remember, Congress convenes this Tuesday.

Update deux: Apparently some Senators are considering blocking the door so that Burris can't enter the chamber. That sounds like a great idea, guys!

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