Can the Senate Keep Him Out?

In a scene right out of a political TV melodrama (tho' without the Sorkinesque repartee), would be Illinois Senator Roland Burris was turned away from the Senate today as he tried to take his seat. Though he was blocked by the Illinois Secretary of State's failure to certify his appointment, the real problem, of course, is that Burris is the choice of disgraced governor Rod Blagojevich. The chutzpah of Blago to go ahead and name someone to fill Obama's seat while under a cloud of impeachment and criminal corruption proceedings has prompted a lot of debate over whether the Senate can do anything about it other than welcome Burris in.

Big name legal scholars are lining up on both sides. The argument, largely, is over whether Article 1, Section 5 of the Constitution, which makes each house of Congress "the Judge of the Elections, Returns, and Qualifications of its own members," applies in the Burris situation.

Last week, Akhil Amar and Josh Chafetz, writing at Slate, laid out the argument for excluding Burris. They argue that "returns" can be defined to include an appointment (not just an election) and thus fall within the scope of the clause. If, as they seem to take as given, the Senate could refuse to seat someone who won the seat during a corrupt election, then it could do the same for an appointment. Burris, or anyone else appointed be Blago, can therefore be excluded as the end product of an allegedly corrupt proceeding.

Meanwhile, writing in today's Los Angeles Times, UC-Irvine law dean Erwin Chemerinsky takes the opposite approach. He relies on a 1969 Supreme Court decision involving Adam Clayton Powell, Jr., whom the House refused to seat after a clean election:

[Chief Justice Earl] Warren, writing for a 7-1 majority (with one justice not participating), quoted James Madison: Allowing the House to exclude properly chosen individuals would be ''vesting an improper and dangerous power in the legislature.'' Instead, there must be a 'narrow construction of the scope of Congress' power to exclude members-elect.'

The court concluded that the only qualifications the House could consider were those specified in Article I, Section 2of the Constitution: Was Powell at least 25 years old, seven years a citizen of the United States and a resident of the state from which he had been elected?

Applying that logic to the Senate, all it can do is check to see if Burris is 30 years old, a US citizen, and a resident of Illinois. As he meets all those qualifications, the Senate can't keep him out.

I think Chemerinsky has the better argument. It's hard to remember in all the hullabaloo, but Blago is still the governor of Illinois, with all the powers that entails. He's not been convicted of anything, nor impeached. Unless there's something corrupt in his selection of Burris (an allegation I haven't heard anyone make yet), it's still his decision to make.

I also think that allowing either house of Congress the authority to do anything beyond ensuring its members comply with Constitutional requirements to be seating opens a potentially huge can or worms. In the 21st Century hyper-partisan political world, do we need each new session of Congress to get wrapped up in examining the "qualifications" of new members (or old)? I think that's a bad idea.

So, what's the bottom line? I'm glad I don't live in Illinois and can just marvel at the train wreck from afar.