Strengthening Constitutional Self-Government

No Left Turns

Reid and Burris

So am I missing something here? I don’t normally agree with Harry Reid, but his claim that the Senate can refuse to seat Roland Burris, the man that disgraced Illinois governor Rod Blagojevich has appointed to fill the seat left vacant by Barack Obama’s election as president, seems to be on the mark.

As I recall, during the Civil War the Senate and House refused to seat the congressinal delegations from the newly reconstructed states of Louisiana and Arkansas because the radicals in both houses disagreed with Lincoln over Reconstruction policy. If they could refuse to seat members whose credentials they questioned, why can’t the Senate refuse to seat Burris? Perhaps the constitutional lawyers out there can explain why Reid is wrong.

Discussions - 9 Comments

On what constitutional grounds could Reid and the Democrats block Blago's appointment? Blago has not been indicted on any charges, is the legitimate Governor of the state, and is presumed innocent until proven guilty. The 17th amendment says nothing about the members of the Senate having any auhtority to approve the appointment of a senator by the governor. Maybe after Burris is seated the Senate could attempt to expel him under Art. 1, Sect. 5 Clause 2. The difficulty is that they would then be dealing with Burris not Blago. Burris has not been indicted or found guilty of anything and is presumed therefore to be a decent man and prefectly qualified to be a senator.

Eugen Volokh has been posting on this issue. Both sides are linked above.

IIRC, the Dems in Congress have in several instances seated the "loser" in an election for the House. That is, the candidate who received fewer votes but was a Democrat.

If that's allowable, and it was never defeated in court, then I have a hard time seeing why this current issue represents some novel problem.

I don't have time to track down the case, but I believe it was in the 1970's in NH, where the Republican candidate won the election by something like two votes, and the Democratic Congress gave the seat to the losing Democrat.

The Powell Jr. case should restrict the Senate to rejecting members of the Senate only to the 3 specific requirements (age, citizenship, residency) in A1 S3. The SC ruled the House could not invent other standards. Powell was legally elected, Buriss has been legally appointed. The difference is minor - both cases follow the legal proscription for choosing a senator under the 17th Amendment. I see little legal room here. Sen. Reid's statement that "We [the Senate]determine who sits in the Senate" is arrogance; it is the people of a state and the duly elected state executive empowered by the state legislature who choose the Senator from that state. If the Senate truly has the power to choose it's own members, they could reject the will of the people of a state for whatever political, ideological, personal, racist reason they might have.

Did the SC ever rule on the legality of the House and Senate refusing to seat representatives of Arkansas and Louisiana?

The SC ruled ...

I know this is a profound shock to some people, but not all of us regard the SC as the final word on all topics.

Google "Republican Richard McIntyre" to see how creative Congress has been in the past in seating who it wants to.

I think 'John' is referring to the seat contested by Louis Wyman and John Durkin in 1975. The Senate ultimately refused to seat Mr. Wyman. A special election was called for the fall of 1975 which John Durkin won.

IIRC, the problem in the McIntyre - McCloskey contest in 1985 was disputes over the criteria for evaluating paper ballots which were defective in some way but which had markings on them indicating a choice. The Washington Post editorialized in favor of seating Richard McIntyre, so it is doubtful that the decision rules which the Democratic majority was applying would have been considered fair by an impartial observer.

John - never meant to imply the SC had all the answers. But this seems headed to the courts, where precedent usually matters.

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