A Stitch in Haste

I’m stunned and depressed that this post is even necessary. But there has been so much sophistry on steroids in the blawgosphere over Illinois Governor Rod Blagojevich’s in-your-face appointment of Roland Burris to fill Barack Obama’s Senate seat, and Senate majority leader Harry Reid’s in-your-face threat not to seat Burris, that a dose of reality-based commentary is now required.

Step 1: Article I, Section 5, Clause 1 —

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…

There was no “election” and no “returns.” End of discussion. The question of “qualifications,” meanwhile, was resolved by Powell v. McCormack, 395 U.S. 486 (1969) to mean only the constitutional qualifications: age, citizenship and residency. Burris unambiguously meets all three qualifications. The Senate therefore has no authority whatsoever under Article I, Section 5, Clause 1, to exclude him. It really is that simple.

Step 2: Seventeenth Amendment —

When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Regardless of how the Illinois state government has addressed the question of “election versus temporary appointment,” this much is clear: The Senate plays no role in the review process (i.e., in the way it can review “elections” and “returns” under Article I, Section 5, Clause 1), and therefore has no authority — none — to supersede the plain text of the Amendment. If the appointment was made improperly (a hotly debated question), then that is exclusively for the courts to decide (or, if they punt the ball as a “political question,” then it is for the Illinois legislature to resolve, not the Senate).

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Bottom line: Sign me up as an out-and-proud supporter of “mindless textualism.”

The attempts by some to overlay the “spirit” of Article I, Section 5, Clause 1, upon the Seventeenth Amendment is, as I said, sophistry on steroids.

If Reid & Company are so indignant, then let them expel Burris after he is seated (sorry for more “mindless textualism,” but let’s recall that the Senate’s Article I, Section 5, Clause 2 expulsion power — unlike its Clause 1 seating power — is indeed plenary).

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On the other hand, the Senate does of course have the power, under Article I, Section 5, Clause 1, to muck around in the Franken-Coleman circus — that was, unlike the situation in Illinois, an “election” with “returns” that the Senate is empowered to judge. Unfortunately. Stay tuned.

More thoughts from Con Law Prof Blog.