On Monday, in response to a complaint from the United States Department of Justice alleging that Governor Milorad “Rod” Blagojevich had solicited bribes and engaged in a massive conspiracy to commit fraud, the Illinois House voted 113-0 to begin impeachment proceedings. Blagojevich has not yet been indicted.

On December 10th, Senate Majority Leader Harry Reid decided to celebrate Blagojevich’s 52nd birthday by drafting a letter soliciting his resignation. The letter, which was subsequently co-signed by the entire Democratic caucus, includes this warning:

Please understand that should you decide to ignore the request of the Senate Democratic Caucus [to resign as Governor] 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.

The Majority Leader is referring to Article 1, § 5, Clauses 1-2 of the Constitution of the United States, which read:

Section 5. [Clause 1] 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.

[Clause 2] Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

Due to the impeachment proceedings and Blagojevich’s newfound support for a special election, the chances are very good that no one will ever have to answer the question of whether or not Reid actually has the authority not to seat an appointed Senator. On face, this question would appear to be judicial taboo, plainly fitting the parameters for what Federal Judges often call “non-justicable political questions.” But seeing as how it is isn’t very polite to threaten someone with a constitutional power that you don’t have, some people are starting to ask some questions.

In Powell v. McCormack 395 U.S. 486 (1969), the Supreme Court held 8-0 (with Justice Fortas ironically not voting due to his own political scandal) that the House of Representatives did not have the authority to “exclude” a constitutionally-eligible person from serving in Congress. Representative Adam Clayton Powell (D-NY) – who brought the case against the Speaker, the House Clerk, the Sergeant at Arms, and even the Doorkeeper of the House – alleged that the House’s decision to exclude him (as made in House Resolutions 1 and 278, both in 1967) was unconstitutional. Powell, who was accused of misusing travel funds and paying his wife an unearned Congressional salary, fit the constitutional requirements for office as stated in Article 1, § 2, Clause 2. The United States District Court for the District of Columbia dismissed the case for lack of jurisdiction; the Appeals Court ruled that it did have jurisdiction, but that the matter was, in fact, a non-justicable political question. The Supreme Court accepted review, and heard arguments on April 21, 1969.

In the majority opinion, Chief Justice Warren wrote that the Court’s analysis of Article I § 5

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.

Thus, it would seem that Harry Reid lacks the authority to refuse to seat a duly-appointed Senator assuming he or she meets the constitutional requirements. The Senate could, of course, vote to expel the member with a 2/3 majority. And it would also be prudent to note that no self-respecting politician would accept a Blagojevich appointment at this point anyway.

In the end, it appears that this a pretty cut-and-dry sort of thing. Harry Reid either misspoke, intending to threaten an expulsion, or else someone needs the Majority Leader of the United States Senate a copy of the Constitution.

4 Responses to “Does the Senate Have the Constitutional Authority to Refuse to Seat a Blagojevich Appointee?”

  1. 1 Kit Menkin

    The caucus does not need to put him on any committee and can certainly filibuster any comment he might want to make from the floor. They can also contest his vote and throw
    the issue into the Supreme Court.

    If the Illinois Legislature should impeach the governor, they may be able to
    go to court that the appointment was not valid.

    More than anything, why would anyone want to put their political party through this in these days of turmoil. The appointee is not doing his constituents or country any good
    by prolonging this fraud. He certainly will have an up-hill battle for election in two years.

  2. 2 Fred Nasredine

    In Powell v. McCormack, the issue may have been non-justiciable primarily because Mr. Powell was duly elected by the voters of his district (note the language that Chief Justice Warren used in the opinion). The courts, in a potential Burris case, may not afford the same level of deference to an appointee.

    Senator Reid may not have the constitutional power to refuse to seat Mr. Burris; however, he does have the procedural power to delay the matter until Governor Blagojevich is indicted, or impeached. At which point, Mr. Reid, and the democratic caucus, will have potentially two options:
    1) They can argue that Burris’ appointment cannot stand because Blagojevich lacked the authority to appoint; or
    2) a more plausible approach would be that following the impeachment of Blagojevich, the new Governor would rescind Burris’ appointment.

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