Blagojevich and the Constitution

Gov. Rod Blagojevich's decision to appoint former state attorney general Roland Burris to the U.S. Senate has sparked controversial reaction throughout the political world. (Getty Images/AP Photos)

Gov. Rod Blagojevich's decision to appoint former state attorney general Roland Burris to the U.S. Senate has sparked controversial reaction throughout the political world. (Getty Images/AP Photos)

While it may be galling for Rod Blagojevich to get to appoint someone to fill Barack Obama’s Senate seat while he’s under federal indictment for trying to sell said seat, Jane Hamsher argues that he’s perfectly entitled to do so.

Then fifty members of the Democratic Caucus signed a letter saying they would oppose any Blagojevich appointment from being seated — without due consideration as to whether the Senate had the right to do so. Although there is considerable disagreement on that front, it is not at all certain that they can.

Now Illinois Secretary of State Jesse White says that he will not sign the appointment of Roland Burris, and it isn’t clear he has the legal authority to do that, either

[…]

Is any of this legal or ethical? That isn’t a question Reid seems to be asking.

Laurence Tribe disagrees.

In its landmark 1969 ruling in Powell v. McCormack, the Supreme Court held that Article I, Section 5, which makes “[e]ach House…the Judge of the Elections…and Qualifications of its own Members,” represents “a textually demonstrable commitment” to Congress of the power to judge, without interference by any court, whether a duly elected individual meets the age, citizenship and other objective qualifications for office set forth in Article I, Section 2, but not any power to deny membership through the discretionary addition of ideological or other “qualifications” to those carefully laid out in the Constitution itself.

[…]

That Roland Burris, the man appointed by the Illinois governor in late December, was never “elected” is beside the point inasmuch as the 17th Amendment specifies that, whenever there is a vacancy in any state’s Senate representation, the state’s legislature “may empower [its] executive . . . to make temporary appointments until the people fill the [vacancy] by election as the legislature may direct.”

Steven Taylor agrees that “the focus on process, not candidate, gives the Senate a constitutional argument to stand on” while Jack Balkin notes that “temporal and political factors” are at play, too:

a complicated process of bargaining and playing for time. And even if the Senate lacks the authority to refuse to seat Burris, the debate over whether it does (and the need for Burris to bring litigation to establish his right) also gives the Senate and the Illinois legislature room for maneuver.

The Senate may ultimately seat Burris, but for the moment, it probably wants to delay decision by referring the matter to a committee to consider whether or not there was anything problematic in the circumstances of the appointment (Many commentators doubt that there is anything problematic with the appointment, but it’s worth recalling that only a few weeks back the Governor was caught on tape boasting he would sell the seat and certainly wouldn’t let it go without getting something valuable for it. Even if there is no present evidence of misconduct in this appointment, the Senate might insist that it deserves a little time to look a little closer into the circumstances).

It seems self-evident to me that Blagojevich has every right to appoint whomever he wants to the Senate (providing that they meet eligibility thresholds) for just about any reason and that the Senate has every right to refuse to seat that person for most any reason, which creates a stalemate.  As a matter of reasonablenesss, however, absent evidence that the Roland Burris appointment itself was tainted, he should be seated.   Like it or not, Blagojevich is the governor of Illinois.  And the state deserves representation in the Senate.

FILED UNDER: Campaign 2008, Law and the Courts, US Politics, , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. odograph says:

    More than anything it seems an unfortunate distraction. I was listening to Left, Right, and Center (a show that mixes good comments with aggravating misses) and someone there got it, something about the appointment being a made for cable news drama, that only serves to distract from things like oversight and investigation into where the $700B went.

  2. Bithead says:

    As much as it pains me to agree with the denizens of fire don’t like about the color of the sky, much less anything of greater import, particularly Hamsher, I’ll grudgingly give her this one.

    That said, I find it difficult to believe that anybody could offer up a name that would be any worse for the position than Roland Burris. That Bobby Rush thinks so highly of him, is the first indication that the guy is pure poison. That said, you’re quite correct in that on procedural grounds, there is no constitutional way to block the appointment.

    That is, unless …

    Blagojevich has a long history of not lifting a finger until somebody pays him to do so. Does not strike anybody as a large? At least, that nobody has dared raise the possibility that money was transferred to Blagojevich from somewhere to facilitate this appointment? After all, with a record like that of Blagojevich, it seems a logical question to ask at the least. I find myself amazed that nobody on the far left, Hamsher included, has dared to raise that possibility. Is the fear of being called racist, so large that we ignore this level of obviousness?

    As I remarked somewhere else this morning, the interesting part about all of this is that there is no Republic and that they can can any of this on. There’s no escape from the fact that this is a purely democrats scandal. There’s also no escaping from the fact that the most logical conclusion to draw is that the scandal runs far deeper than just the principal players.

    And of course, it’s also true that nobody dares mention Barack Obama came up out of that particular slime pit.

  3. Triumph says:

    It is important to remember that this whole mess is being manipulated by the Grand Liberal Obama. He owes his entire career to Blagojevich and is likely to become indicted himself in the scandal–the fact that Fitzgerald has investigated Obama’s role is evidence.

    Obama is trying to make himself the good guy so he won’t get indicted. He may be successful. But we should always be cognizant of the thread that links Blagojevich, Obama, Burris, Reid, Hillary, Ted Kennedy, Jesse Jackson, Al Sharpton, Louie Farrakahan, Barney Frank, Nancy Pelosi, and Barry Bonds: Theys all LIBERALS.

    This is a harbinger for how they going to rule America.

  4. bob in fla says:

    Triumph, you are a hoot!

    I believe the Powell Supreme Court decision leaves no doubt that the Senate must eventually seat Burris. Reid, & the rest of the Democratic caucus, have again exposed themselves to open mouth, insert foot disorder. I don’t like what Blago just pulled either, but we are a nation of laws & the law is on his side.

  5. Leo says:

    What I think is really amusing about this is that when John Kerry was nominated (I typed indicted on the first pass, heh), the Mass legislature took the governor’s appointment power away in two days. That was something of a speed record for them, I imagine.

  6. Michael says:

    At least, that nobody has dared raise the possibility that money was transferred to Blagojevich from somewhere to facilitate this appointment?

    Um, I thought that was the general implication of the entire action to block Burris, because any appointment made by Blagojevich would automatically be under suspicion of bribery.

    As much as it pains me to agree with the denizens of fire don’t like about the color of the sky

    the interesting part about all of this is that there is no Republic and that they can can any of this on.

    Were you drunk when you posted this?

  7. John Cole says:

    As a matter of reasonablenesss, however, absent evidence that the Roland Burris appointment itself was tainted, he should be seated. Like it or not, Blagojevich is the governor of Illinois. And the state deserves representation in the Senate.

    I agree completely.

  8. yo says:

    If the folks in Minnesota can wait for the Coleman/Franken issue to be resolved, Illinois can, and should, wait until the Blago issue is resolved, as well.

    We deserve competent representation. Not a side show.

    Side ?: if MA’s legislature can pull the Gov’s appointment power in two days, why couldn’t the IL?

    (A: because they are incompetent boobs with serious concerns over whether or not their names are on those tapes, or had come up in Fitz’s previous 3 year long investigation).

    To paraphrase Jack Nickleson – This state needs an enema.

  9. Floyd says:

    Jesse White may be the only person of competence involved here, including all others in public office or the media,but then it may only appear so by stark contrast.

  10. PD Shaw says:

    The Illinois legislature didn’t act because it was widely believed/repeated that no self-respecting politician would accept a nomination from the Governor. Also, I don’t think you can change the law in “two days” in Illinois — each chamber would have to read the bill on three seperate days in order to pass it and then the Governor would have 60 days to veto from the date of receipt.

  11. PD Shaw says:

    As a matter of reasonablenesss, however, absent evidence that the Roland Burris appointment itself was tainted, he should be seated. Like it or not, Blagojevich is the governor of Illinois. And the state deserves representation in the Senate.

    As an Illinoisan, I think we are more than adequately represented in Washington, by the Minority Whip, the upcoming POTUS, his staff and his cabinet.

    The Blago problem is that according to Durbin at least a dozen Senate candidates were being discussed, not the five or so caught on wiretaps. We don’t know that any one candidate was buying, just that the Governor was selling.

  12. markm says:

    While it may be galling for Rod Blagojevich to get to appoint someone to fill Barack Obama’s Senate seat while he’s under federal indictment

    I may be wrong….but I don’t think he’s been indicted yet. I think Fitz asked for more time a week or so ago. So, as big of an a-hole as Blago appears to be and his apparent open and appalling attempt of abuse of his powers….is it really that that big of a deal?. He is the governor who I believe has not been charged for a crime appointing someone that is able and also not charged with a crime. What’s the legal rub?

  13. PD Shaw says:

    markm is right. A criminal complaint has been filed against the Governor, supported by the affidavit of a law enforcement officer. The indictment has been delayed because Fitzgerald says that more witnesses have been coming forward. The expectation is that the indictment will allege more crimes than the complaint.

    In a strictly criminal law context, neither an indictment nor a complaint constitute proof of the underlying conduct. Some of the evidence like the wiretaps may not be admissible in a criminal court. But the Senate is not a criminal court. I think the affidavit of a law enforcement officer, given under threat of perjury, constitutes evidence of wrongdoing sufficient for non-criminal matters.

  14. PD Shaw says:

    For instance, Blajojevich’s federal security clearance was revoked once the criminal complaint was filed.

  15. Dave Schuler says:

    I think it’s important to remember that a trial of impeachment is neither a criminal trial nor a civil trial. It is a political act.

    Particularly, there is no requirement for a presumption of innocence.

    The procedures and rules of evidence for a trial of Gov. Blagojevich by the Illinois Senate would be whatever the Illinois Senate says they are, presumably consistent with due process.

  16. markm says:

    I think it’s important to remember that a trial of impeachment is neither a criminal trial nor a civil trial. It is a political act.

    Particularly, there is no requirement for a presumption of innocence.

    Without the evidence behind the Fed indictment can an impeachment happen and if so on what grounds??. Having zero law background I would assume that he cannot be impeached unless there is real evidence of wrong doing and at this point all we know is he was recorded speaking about the seat (possibly looking to sell it), some recordings released and since Fitz needs an extension i’m guessing there is no smoking gun…I mean, if you have evidence for the indictment, if more evidence comes to light you bring it to the forefront at that time…why wait??.

    Dunno, Blago is the gift that keeps giving but it isn’t apparent to me that he’s done wrong (at this point).

  17. Dave Schuler says:

    Pragmatically, grounds for impeachment are whatever the Illinois House says they are. Politically, Blagojevich’s credit is so low that the Illinois House could have gotten away with nearly anything without suffering repercussions.

  18. PD Shaw says:

    markm, the Governor is going to be removed forcefully from office if he doesn’t resign first. Like Dave said, it’s a political process, rules of evidence are not relevant.

    Which is another reason the legislature didn’t remove the Governor’s appointment powers. It can impeach the Governor quicker than pass a law regarding that singular issue.

  19. markm says:

    Pragmatically, grounds for impeachment are whatever the Illinois House says they are.

    REALLY???????…if that’s the case, why isn’t impeachment used more as a political tool?. If you can impeach whoever whenever and for whatever reason you’d think, the majority party would be impeaching the minority every chance they had.

    Ya know, Bill Clinton was impeached, found guilty on Federal charges, not removed but went on to make appointments….were those tainted too??

    I’m not a dem and I do hope this continues to drag on (and throw a bit of Harry Reid in for giggles) but you would think (or…I would think) that impeachment would require some semblance of guilt….and I get a gold star for wrangling in the word taint 🙂

  20. Michael says:

    and I get a gold star for wrangling in the word taint 🙂

    You don’t get a gold star for common words like “taint”.

  21. PD Shaw says:

    The U.S. Constitution specifies the grounds for impeachment. The Illinois Consitution does not and the history indicates that was intentional.

  22. markm says:

    Michael…don’t be a taint hater.

    PD..I did not know that…but it seems easier politcally to me to seat the geezer and let him get defeated in the next election.

  23. Floyd says:

    “”but it seems easier politcally to me to seat the geezer and let him get defeated in the next election.””
    “”””””””””””””””””””””””””””””””””””””””””””””””””

    markm;
    That’s either an hilarious bit of sarcasm or your naive optimistic slip is showing![lol] We’re talking about ILLINOIS here!!