John Wirenius ([info]jwirenius) wrote,
@ 2009-01-02 14:33:00
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Um, Can Somebody Get These Dolts on the Google?
Harry Reid, and the rest of the Senate Democrats are understandably hacked off by Blago's appointing Roland Burris to replace Barack Obama in the Senate.

But this? El stupidissimo grande.

Can somebody please, I beg ya, introduce Harry Reid to Powell v. McCormack:
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. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.
Here, as in Powell, there is no real question that Burris's appointment was made in consonance with Illinois law, and that Burris meets the qualifications set forth in the Constitution. So, um, I'd think twice before pullin' that pistol Harry.

Figures the one time that Reid shows some spine its (a) against a Democrat; and (b) without a leg to stand on.

(NB: Yale law professor Akhil Reed Amar tries here to distinguish Powel. It's an argument best described as frail, an exercise in ipse dixit. Unfortunately Professor Amar is not overly fond of precedent, or of the constitutional text, in favor of a sort of squishy "the spirit of the provision" argument that he bases on his own policy preferences).

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[info]jblaque
2009-01-02 08:37 pm UTC (link)
"Figures the one time that Reid shows some spine its (a) against a Democrat; and (b) without a leg to stand on."

I'm beginning to really dislike Reid.

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[info]jwirenius
2009-01-02 09:39 pm UTC (link)
Concur. (And have always why that didn't happen to Calvin).

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[info]alanesq
2009-01-02 08:46 pm UTC (link)
Larry Tribe argues that the Senate does not have to seat Burris.

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I like Tribe, but...
[info]jwirenius
2009-01-02 09:38 pm UTC (link)
this savors of the argumentum excrementum taurum.

Let me say why:

1. Tribe does not assume any impropriety on the part of Burris;
2. Tribe acknowledges that Blago's authority as governor remains the same as the day before the indictment;
3. There's no reason to believe, that any procedural impropriety tainted the appointment.

Under the election clause, the Senate may judge the efficacy of an election in the sense of did it follow pre-existent rules, and procedurally was it flawed. No such claim is made here; it's merely the howling unseemliness of the appointment as a political matter. But absent some statutory bar, unseemliness is not a legal impedimen--the remedy is to impeach Blago.

Let's take another example. If, for example, Stevens had been returned, and resigned, could Palin have appointed herself? Assuming no contrary Alaska law, I do not see why not.

I'm sorry, but I think Tribe is being a bit ends-based here. Thanks for calling it to my attention, though, and a happy New Year to you and the lovely Lisa V!

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Re: I like Tribe, but...
[info]zigamorph
2009-01-02 10:07 pm UTC (link)
I hadn't read Tribe's article before writing my own comments below, but now that I have it seems to me that he is making the same basic argument I was — and citing decent historical precedent. The fact that prior congressional exclusions on grounds of suspicion of impropriety have been allowed to stand unchallenged is persuasive, clear evidence that Congress has always assumed it has this power.

Whether the impropriety is personally imputed to Burris is not to my mind an essential distinction: if someone else had paid off the governor to appoint Burris while Burris had no knowledge of the bribe, then the process per se would be no more or less tainted than if Burris knowingly and willfully paid the bribe himself.


Edited at 2009-01-02 10:09 pm UTC

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Re: I like Tribe, but...
[info]jwirenius
2009-01-02 10:14 pm UTC (link)
Sorry; I should have made my point more clear. Tribe's argument is predicated on a blanket rejection of any appointment made by Blago--whether or not there are any reasons to assume that the appointment in question was tainted. And that's exactly where it's wrong--were there some appointment-specific reason to believe Blago had been bribed, I think there would have been a reason for Congress to question the validity of the appointment, and thus, in the constitutional sense, of the "election." That's why Powell seems grmane to me--Trbe assumes (as does Reid) that the loss of confidence in any appointee by Blago is sufficient. I think that ios more along the lines of the untethered scope of review asserted and rejected in Powell.

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Re: I like Tribe, but...
[info]zigamorph
2009-01-02 10:41 pm UTC (link)
I think that if Blago is tainted, or even if there is reasonable suspicion that Blago is tainted, then it is appropriate to treat any appointment by him as tainted. It's really a very fine line, and none at all in terms of public confidence in the electoral process, whether Blago was actually bribed or merely solicited bribes. Once Congress finds as a matter of fact that there is a reasonable suspicion that Blago solicited bribes to make the appointment, then I think it is sustainable to regard any appointment by him as necessarily and inherently tainted.

You and I may not be so far apart on this issue as I first thought. In order to exercise the power of review that I (and Tribe) are asserting is within the competence of Congress, Powell requires that there must be certain findings of fact which prevent the review from reaching, as you put it, "untethered scope."

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[info]zigamorph
2009-01-02 09:56 pm UTC (link)
I don't really agree with Amar's position here, but I don't think Powell gives complete support to yours, either. First, the question in Powell was whether the court had the competence to issue a declaratory judgment, and not, as the opinion notes explicitly, whether the court had the power to enforce its finding.

Second, and more importantly, the sufficiency of process seems to me exactly the sort of question that the appropriate house of Congress is expected to examine in deciding whether to seat a member. It's reasonable for the Congress to give greater deference to an election by voters than an appointment by a governor, and the Powell decision notes that this has been a principal argument against expelling members when an election has occurred.

I don't think the Congress is strictly limited to applying a ministerial "checklist test" to determine whether the appointing authority is valid. Suppose, for example, that there was reasonable suspicion that the appointee had in fact bribed the governor: in such a set of facts, the exercise of appointment power would be as much technically valid by the checklist standard, but it would be absurd to say that the Congress would be powerless to decline to seat the appointee or to require the Congress to seat the appointee in order to expel him.

I read the essence of Powell as saying that the power given to Congress by the Constitutional text does not subsume any right to thwart the will of the voters or the states in a federal system. It would be a stretch to find a comparable set of circumstances in a case of appointment by a governor who is facing corruption allegations for trying to sell the appointment.

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[info]zigamorph
2009-01-03 03:43 am UTC (link)
Time, citing The Chicago Sun-Times:
Senate Majority Whip (and Illinois senior Senator) Dick Durbin has left at least two telephone messages for Burris, but neither of those calls has been returned. (Burris says he hasn't figured out how to work his cellphone, which suggests that perhaps he is indeed suited for the Senate.)
EDIT: Lynn Sweet of The Chicago Sun-Times has retracted the claim about the cell phone:
FOOTNOTE: I said in Thursday's column that Burris did not return messages Durbin left him on his cell phone because he hadn't nailed down the message feature. Burris said I was wrong, he just had a lot of messages.


Edited at 2009-01-03 12:29 pm UTC

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