The Economic Nationalist

Is Roland Burris of Illinois entitled to take the seat the U.S. Senate has denied him today?

The short answer is, no. For a longer answer, well, let’s untangle this.

1. Embattled Illinois Gov. Rod Blagojevich is credibly accused of trying to sell Barack Obama’s U.S. Senate seat. Caught in the act, as it would seem, the governor has boldly appointed someone to the seat anyway. He has appointed Mr. Burris.
2. The U.S. Constitution empowers a governor to fill his state’s U.S. Senate vacancies in accordance with state law. Illinois law evidently leaves such appointments to the sole discretion of the governor—which incidentally is not unusual; other states too have such laws.
3. Neither the Constitution nor, apparently, Illinois law predicates the validity of a U.S. Senate appointment on whether the Senate seat is corruptly sold—besides which, no one connected with the case has even alleged that the corruption might have touched Mr. Burris, the appointee.
4. There exists no valid principle of law of which the writer is aware to suggest that a mere indictment of political corruption denied an indicted governor his prerogative to proceed as though the indictment were false. In this case, however, the governor has not even been indicted. Under Illinois’ constitution, evidently, as is typical of other states, the only grand jury with power to issue the relevant indictment is the state’s house of representatives, the indictment being known otherwise as impeachment. The state’s house of representatives has not yet acted.
5. American constitutional prudence does not leave the formal instruments of state in the actual hands of a state’s governor but delivers them to a secretary of state for safekeeping. This means that, when a governor fills a vacant U.S. Senate seat, he relies on his secretary of state to certify the appointment, the secretary acting on behalf of the state as such. Apparently acting lawlessly but nonetheless, Illinois Secretary of State Jesse White has refused to certify the appointment of Mr. Burris.
6. The writer naturally is no expert on the Constitution of Illinois but assumes that, if Illinois is like other states, there exists a procedure to curb a lawless secretary of state. This procedure would be the same as the procedure to curb a lawless governor: impeachment followed by trial in the state senate. Again, the state’s house of representatives has not acted.
7. The net result is that Mr. Burris has no proper credential to present at the door of the U.S. Senate. The Senate naturally demands credentials; it will not seat just anyone who shows up. Mr. Burris does have a letter from his governor, but a U.S. senator represents not a governor but a state. This distinction is crucial. The instruments of state do not lie in a governor’s hands, not even when a secretary of state has abused said instruments. This is why the governor’s letter alone cannot avail Mr. Burris.
8. Of course, as we have observed, the person in whose hands the relevant instruments of state do lie, Mr. White, has no right to withhold the credential. The U.S. Senate cannot do anything about Mr. White in general, but it can remedy Mr. White’s particular malfeasance in this case by seating Mr. Burris without the credential. To do so requires a merely a majority vote of the U.S. Senate.
9. But the U.S. Senate has not voted on the matter, yet. Therefore, Mr. Burris cannot lawfully yet take his seat.
10. The trouble in this is that the Senate’s majority leader, Harry Reid, and the Senate rules committee seem at this moment disinclined to act, inclined rather simply to let Mr. Burris languish.
11. The U.S. Constitution empowers the U.S. Senate and solely the U.S. Senate to judge as to who has the right to sit in the U.S. Senate. It grants the courts no role.
12. Now, there are indeed circumstances in which written laws do not govern, circumstances in which authority has broken down or has reached an irresolvable impasse, but such situations are rare and this is not one of them. Authority has not broken down; the Senate holds it. Nor has the circumstance reached an impasse, for the Senate can act any time it chooses to. Should Illinois never certify Mr. Burris and should the Senate choose never to act to correct this wrong, well, it would appear that Mr. Burris would be out of luck.

Or so it would seem. Enter Powell v. McCormack.

In 1966, the people of a New York Congressional district re-elected one Adam Clayton Powell, Jr., then under shadow of corruption allegations. The U.S. House of Representatives (which might have seated then expelled Mr. Powell by two-thirds vote) wrongly refused to seat Mr. Powell, whereupon Mr. Powell sued Speaker of the House John W. McCormack in federal court.

The judge held rightly that he lacked authority to adjudicate the matter and dismissed the suit, but Mr. Powell appealed and the case eventually made its way to the U.S. Supreme Court. The case however did not reach the Supreme Court until 1969, by which time (a) the two-year Congress in which Mr. Powell had been denied a seat no longer existed, (b) Mr. Powell had been re-elected again, and (c) the new Congress had duly seated Mr. Powell. Thus, by the time the case reached the Supreme Court, the only relief the court could grant Mr. Powell—even if the court had authority in the matter, which by rights it did not—was to restore Mr. Powell to the position of former Congressman. There were no votes left for Mr. Powell to cast, no relevant duties left for Mr. Powell to perform. The term was over.

Even disregarding that the case was nonjusticable, one would think that the expiration of the term would have rendered the case moot. So Speaker McCormack argued.

The court was at the height of its 1960s arrogance in those days, however, and—sensing a chance to belittle Congress—it would not listen to law or to reason. The court held that the case was not moot because, were Mr. Powell’s claim to be upheld, the United States would owe him two years’ back pay. Mr. Justice Douglas dissented,

On the other hand, if [Powell] was entitled to a salary as a member of the 90th Congress, he has a certain and completely satisfactory remedy in an action for a money judgment against the United States in the Court of Claims. While that court could not have ordered Powell seated or entered a declaratory judgment on the constitutionality of his exclusion, it is not disputed that the Court of Claims could grant him a money judgment for lost salary on the ground that his discharge from the House violated the Constitution. I would remit Congressman Powell to that remedy, and not simply because of the serious doubts about the availability of the one he now pursues.

The court however would not listen to Mr. Douglas and ruled 7-1 for Powell.

Presented with the court’s order, the U.S. Treasury paid Mr. Powell his back pay. The order actually asked Speaker McCormack for nothing of substance, since excepting the matter of back pay the case actually was moot; so, basically, Mr. McCormack and the House of Representatives ignored the court’s trespass and forgot about it, there being after all nothing else for them to do, since the Congressional seat in question had expired, anyway. The ruling still stands however as the court’s latest word on the subject, and the trouble with the ruling is that it goes beyond merely having awarded Mr. Powell back pay. The ruling gratuitously arrogates to the court authority the Constitution explicitly denies it, to overrule a house of Congress in the matter of seating its own members.

If Mr. Burris now sues, this is going to get interesting, for the Senate’s duty will be to ignore the court.

The irony lies in that Mr. Burris is indeed entitled to his Senate seat, but that he cannot actually take the seat until the Senate says that he can. He has no other remedy. Powell v. McCormack does not govern. It never did.

HJH

[Update: An attorney has e-mailed the writer to remind him of a significant point the article overlooks. Mr. Burris can sue Mr. White in Illinois state court. In fact he has already done so, asking the court to order Mr. White to certify the U.S. Senate appointment on the ground that (a) Illinois’ constitution vests the secretary of state with no discretion in the matter, leaving the secretary with a merely ministerial duty; and (b) even were it not so, Mr. White has certified other acts of the governor since Mr. White learned of the accusation against the governor and that, therefore, the secretary’s action against Mr. Burris is “arbitrary and capricious.” The judge in the case is not a federal judge but an Illinois judge since the specific matter in dispute—the secretary of state’s refusal to certify a particlar act of his governor—is not a federal question at all but an internal state question. The attorney supposes that the judge will order Mr. White to certify Mr. Burris’ appointment within a few weeks, and doubts that Mr. White would defy the court, whereupon Mr. Burris would take his U.S. Senate seat without further dispute. —HJH—]

This entry was posted on Tuesday, January 6th, 2009 at 5:49 pm and is filed under Political theory, Election 2008. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.