Political Drama

Marathon, FL
No LL

Like many others, I love watching political drama. The appointment of Roland Burris to fill Barack Obama's seat by Governor Rod Blagojevich is political drama of the highest order.

Last week, I heard an Illinois lawyer on NPR say that the Senate had no legal authority to block Burris. Despite that, the media stories on the subject just continue to report that the Senate plans on blocking Burris, without digging in to the substance of the legal question. Tsk tsk, shame on them. I had to do my own research.

The reports say that Democratic senators plan to block seating Burris based on their powers under Article 1, Section 5 of the Constitution. The relevant sentence says, "Each House shall be the judge of the elections, returns and
qualifications of its own members...".

However, the Supreme Court decided POWELL v. McCORMACK, 395 U.S. 486 (1969). In the majority opinion of that case, Chief Justice Earl Warren wrote, "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." The same decision also knocked down a half dozen additional arguments and legal theories raised by the opponents of Adam Clayton Powell Junior. It was a thorough analysis.

The standing qualifications are, "No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.".

There is not even anything in the Constitution that I can find that says Senators must take an oath of office. It may be custom, but it is not required. Ditto with the concept of "being seated." There is nothing in The Constitution and nothing in the Powell decision that requires that a Senator be seated by the Senate.

As far as I can see, Burris need only show up in Washington, and start voting on the Senate floor. There is absolutely nothing constitutional that other Senators can do about it. Nevertheless, they are all lawyers, and all clever so I'm sure that they'll try to find a way.

Like I said, this is political drama of the highest order.

p.s. One day after I posted this blog, the Wall Street Journal published an article making the same points I did. See Harry Reid v. the Constitution