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The Powell Precedent

[ 0 ] December 31, 2008 |

My vacation has limited my blog reading, so I assume someone else has already discussed this. But since I haven’t seen it much, I feel compelled to point out that missed in many discussions about the Burris appointment is the fact that the Senate is probably unable to prevent him from being seated as a matter of constitutional law. The Supreme Court ruled 8-1 (and 8-0 among justices deciding on the merits) in Powell v. McCormack that “in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution.” It is possible to distinguish the cases — the fact that Burris is appointed obviously mitigates the problems with Congress interfering with the integrity of elections that Douglas discusses in his concurrence. Still, the bottom line of Warren’s majority opinion is unequivocal and directly on point; if Burris were to litigate an exclusion a lower court would almost certainly rule in his favor, and I doubt that the Supreme Court would overrule. The Senate could expel him after seating with a 2/3 majority, but (absent strong evidence that Burris obtained the appointment illegitimately) this seems unlikely. Reid’s remedy is likely to be to prevent him from joining the Democratic caucus.

I would also add that I think that the principle in Powell is sound and should apply to this case. It’s important to remember that the seat belongs to Burris, not Blagojevich. Powell was entitled to his seat despite some credible evidence of self-dealing (although there was certainly a racist double standard in the Senate’s sudden discovery of pure ethics in Powell’s case.) It’s hard to argue that the alleged corruption of a third party should allow Congress to prevent Burris from taking his seat when the alleged corruption of the member himself did not. The fact that he was elected rather than appointed tips the scales back, but not enough; if Burris was appointed legitimately (and he was), I don’t think the Senate can or should exclude him before the fact. If Illinois doesn’t want Blagojevich to exercise the powers of his office, it should impeach him.

UPDATE: Jack Balkin argues that Powell in fact can be distinguished. For the reasons discussed above, I don’t find his argument convincing, at least as a normative matter. The biggest omission is any evidence that the appointment of Burris was in any way illegal. If credible evidence that Burris bribed Blagojevich emerges, then I agree that the Senate can properly refuse to seat him. Otherwise, his appointment was legal, he is fully qualified, and the Senate cannot refuse to seat him without effectively overruling Powell. Since I think the case was correctly decided, that settles the question for me.

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