Tuesday, January 06, 2009

More on "As the Burris Turns"

A Slate piece picked up on my argument below. I still think it is highly likely that he will serve, but there is a colorable constitutional argument the Senate could use to preclude him from being sworn in (and it is NOT the approach taken by Harry Reid, who is a major-league buffoon.) Reid is arguing the technicality of the certification, which is effectively mooted if/when the Illinois Supreme Court grants the mandamus motion. The Sec of State's certification is PURELY ministerial and is probably not even a legal requirement. He is acting as a notary, just authenticating that this is the document the governor signed. Otherwise would add an impermissible "with the advice and consent of the Sec of State" proviso to the appointment provision.

A serious, albeit an unlikely challenge, could be made to the substance of the legality of the appointment. Under Art 1 Sec 5 of the constitution, senators are not bound by what is going on outside in the prosecutorial process.

And in terms of making asses of oneself, insert "Sen. Cornyn" here.


I'm Not Ned said...

My understanding is that US Senate rules require the signature of the Sec. of State to be present.

From the Standing Rules of the Senate: Rule II sec. 2

"The Secretary shall keep a record of the certificates of election and certificates of appointment of Senators by entering in a wellbound book kept for that purpose the date of the election or appointment, the name of the person elected or appointed, the date of the certificate, the name of the governor and the secretary of state signing and countersigning the same, and the State from which such Senator is elected or appointed."

So now it's back to Illinois for the writ of mandamus to compel Sec. White to sign.

White has already indicated his lack of signature was more an indication of his displeasure with the whole ordeal and not a legal maneuver.

Peter said...

True I N Ned, but the Senate by rule cannot impose further obligations by rule than what is required by law. The form that the Senate provides is basically a template.

Suppose that the Secretary of State of Hypothetica refused to sign the certificate. Assume the Supreme Court declined to act (under the "political question" doctrine, for sake of argument.) The Senate rules would not support the preclusion of an otherwise lawfully appointed senator merely due to the absence of a ministerial affidavit.

I'm Not Ned said...

Hehehe, that's why the path this will take is not yet obvious!

Sec. Whites actions (while I applaud them) were merely a personal protest of the current situation. He's made his point and I'm sure he will either sign or comply with an order to sign. I don't see him going to the contempt mat over this.

The cert. failed the Senate rules. The Senate has the authority to enact their rules as long as they aren't in violation of the Constitution. Yes, it's a ministerial issue, but the Constitution gives Congress the authority to judge elections and returns (ie. appointments via writ of election). They aren't held to the standard burdens of proof so all they need is the appearance of impropriety.

Right now the lack of a signature is an easily overcome bump in the process. The next challenge for all involved is to see how far the Senate can go with their powers to question a Governors Constitutional authority (17th Amend.) to fill a vacant Senate seat through appointment when there is the appearance of corruption involved in the process.

According to Art I Sec. 5 the judge of elections and appointments is the Senate. The standards for their judgment has yet to be explored outside of the criteria for qualification (ie. Powell v. McCormack 1969) which is not at issue here.

I'm giddy with anticipation!

I'll be watching this blog closely as you guys always impress me with your thought processes through issue such as these!