Thursday, January 08, 2009
Senate refusal to seat Burris has no basis in law
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David H. Eisenberg
Eisenberg, of Buchanan, has been a lawyer for over 24 years. He has taught constitutional law classes at Stony Brook University as an adjunct instructor.
The refusal of the U.S. Senate to seat Roland Burris, the senator appointed as a replacement for Barack Obama by disgraced Illinois Gov. Rod Blagojevich, is a much greater disgrace. Right now, as far as the Senate is concerned, we have a government not of laws, as Americans proudly boast, but one of powerful men and woman who decide who shall be in power unencumbered by law.
Many commentators have been discussing the issue without so much as a nod to the legal issues, which are important and not that difficult to understand.
The 17th Amendment to the Constitution, ratified in 1913, directed that the people in each state were to elect senators rather than the legislature appointing them. It also provided that when vacancies occur, the governor is to issue writs of election for a replacement. However, it also allowed a loophole, which most states follow. In Illinois, for example, the governor may appoint a replacement, as Blagojevich has done, who will sit until the next scheduled election in 2010.
It had been suggested by some that Illinois lawmakers mandate that a special election be held, as some other states do in this situation, and then override any Blagojevich veto. Assuming the legality of that, the Democratic-controlled legislature in Illinois is apparently reluctant to want to take the chance of a Republican being chosen in a special election right now.
Thus, despite all the hue and cry about Blagojevich's appointment, what was he supposed to do? He has neither been impeached nor indicted. Should he leave the Senate seat vacant for an indeterminate time based on the possibility he will be impeached and convicted someday? Arguably, that would be an impeachable dereliction of his duty.
Now the Senate has refused to seat Burris, not based on anything Burris has done, but on two very un-American ideas: the notion that they can rely on a prosecutor's unsworn word and guilt by association.
It is very difficult to argue that the Senate has the right not to seat Burris. In several sections, the Constitution requires only that a senator be at least 30 years old, a U.S. citizen for nine years and a few other easily met requirements. But then it also states:
"Each house shall be the judge of the elections, returns and qualifications of its own members."
Does that mean that the Senate can refuse to seat a senator who meets the Constitution's few requirements? The only time this has come up in the U.S. Supreme Court was in 1969, involving New York Rep. Adam Clayton Powell Jr. The court held that the House of Representatives did not have the power to exclude him since he met the express constitutional qualifications. The basic holding was reaffirmed in passing in the 1990s in a case prohibiting the states themselves from adding their own qualifications. Burris' position here is actually much stronger than Powell's was, as Powell had his own legal and moral problems. Burris does not.
No doubt those opposed to seating Burris will claim that the Powell decision emphasized the right of the people to their chosen elected representative, and that Burris is merely an appointee. If so, what standard would the Senate apply? Refuse to seat members whenever they feel scandal might hurt their party? That isn't a standard. It's powerful people looking to their own interests.
Meanwhile, in the house, Rep. Charles Rangel, D-N.Y., continues to sit despite his own partially admitted ethical lapses, which are arguably much worse than those of Powell, whom he succeeded. Rangel can sit despite his own wrongdoing and Burris can't despite doing nothing wrong. Great system -- if you want a government of men and not laws.
