Blagojevich Makes His Move
P.S. HuffIllinois Governor Rod Blagojevich today named Roland Burris as his pick for Barack Obama's seat in the U.S. Senate. Democratic leaders have insisted that no Blagojevich appointment will be seated, but (for once) it's probably the Illinois governor who has the law on his side.
The Constitution states that each house of Congress "shall be the Judge of the . . . Qualifications of its own Members." U.S. Const. art. I, § 5, cl. 1. This provision can easily be read as suggesting that the Senate's refusal to seat Burris would be unchallengeable. Precedent, however, tells a different story: The U.S. Supreme Court has held that "in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution," Powell v. McCormack, 395 U.S. 486, 550 (1969).
It is true that the Senate could simply pretend (however dishonestly)* that in its judgment Roland Burris did not meet those criteria. Powell does not resolve whether the political-question doctrine bars federal courts from reviewing a house's "factual determination that a member did not meet one of the standing qualifications," 395 U.S. at 521 n.42. But if forced to decide, it's hard to imagine many judges showing that kind of restraint. Refusing to seat a properly-appointed and qualified member would, in any case, be a violation of the Senate's obligation to abide by the Constitution (unless, of course, one thinks the Court got it wrong in Powell.)
Though it requires a supermajority of two-thirds, each house does have the absolute authority to expel a member. U.S. Const. art. I, § 5, cl. 2. While dramatic, that would be the honorable route to take.
* - I haven't looked into it, but naturally I assume that Roland Burris meets the (rather limited) qualifications prescribed by the Constitution.
