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Analysis: Law won't let Senate exclude Burris

This article first appeared in the St. Louis Beacon, Dec. 30, 2008 - One of the nation's leading experts on congressional power says that the U.S. Senate does not have the authority to exclude Roland Burris from the Senate, as Democratic leaders have threatened to do.

Stanley M. Brand, former lawyer for the House of Representatives, said in a telephone interview with the Beacon that the landmark U.S. Supreme Court decision involving the late Rep. Adam Clayton Powell bars the Senate from excluding Burris.

"I've just reread Powell v. McCormack and I think more than ever that the Senate can't do it," he said. (Updated links to various experts' views are included at the bottom of this post.)

In the 1960s, the U.S. House had sought to keep Rep. Powell from taking his seat because of allegations about the misuse of House funds, including payments to his wife. In Powell v. McCormack , the court ruled that while the House was the judge of the qualification of its members, it could apply only the qualifications set out in the Constitution - age, citizenship and residence. The Harlem congressman could not be excluded.

"I think his (Burris') case is stronger than Powell's because he comes with a clean slate," said Brand.

"As a Democrat," Brand added, "maybe I can say this with more persuasiveness than others that the Democrats have made a muddle of this.  What they should have done is to pass a one sentence law calling for an election."

That course is no longer open to the legislature now that Gov. Rod Blagojevich has appointed Burris, although the legislature could schedule an election to replace Burris.

Senate Democrats seem to be trying to distinguish the Burris appointment from the Powell case by saying they are not challenging Burris' qualifications, but rather the process by which he was selected.

The U.S. Constitution states that, "Each House shall be the judge of the elections, returns and qualifications of its own members."

Jim Manley, a spokesman for Senate Majority leader Harry Reid, said, "We are not making a judgment about the qualifications of the appointee, but about whether [the] appointment itself was tainted by fraud. We believe we are entitled to do that. This is like judging the integrity of an election, free from fraud or corruption."

In other words, the Senate would not be judging Burris' qualifications, as the House had judged Powell's.  Rather the Senate would be using its constitutional power to judge the "returns."  There is only one return here and it is Blagojevich's, which is tainted - or so the argument goes.

The decision by Illinois Secretary of State Jesse White not to sign Blagojevich's proclamation naming Burris, might add to the argument that the "returns" were improper.

But Brand rejected the "returns" argument as ridiculous because returns refers to election returns, not to an appointment made by a governor under the 17th Amendment to the Constitution."There aren't any returns, this isn't a returns case," he said.

An opposite view is argued in an interesting piece in Slate by Akhil Reed Amar, a professor at Yale, and Josh Chafetz, a professor at Cornell. They based their argument on the meaning of "returns" in the time of the Founding Fathers. They wrote, "According to the Oxford English Dictionary, a 'Return' in the time of the framers involved a report of an appointment made by a sheriff or other official. If the Senate may refuse to seat a person picked in a corrupt election, it likewise may refuse to seat a person picked in a corrupt appointment process. (Alternatively, we might think of an appointment as an "election" by one voter.)"

A number of legal experts have written in blogs and listservs over the past 24 hours that the Senate has authority under the "elections, returns" language to determine if fraud was involved in the Burris appointment. But these experts add that the fraud would have to relate to the specific appointment of Burris, not to any previous Blagojevich scheme to sell the Senate seat. They also say that Sen. Reid and the Democrats have weakened their case for denying Burris the seat on the fraud rationale by prejudging it.

The Powell case had different facts from the Blagojevich-Burris episode. On the one hand, the U.S. Supreme Court noted that Powell had been duly elected despite the allegations against him. Burris has not been. On that count, Powell had a stronger case. On the other hand, Powell was accused of wrong-doing, while Burris has not been. Burris would have a stronger case on this count, as Brand points out. 

The Powell case focused on Congress' power to "exclude" a member. Houses of Congress also have the power to "expel" a member based on a two-thirds vote. The Powell decision did not deal with this congressional authority to expel, but noted that expulsion was believed to apply only to conduct after a member took his seat. For that reason it would seem not to apply to Burris.

One way to remove Burris would be for the Illinois legislature to pass a law calling for an election to fill the seat. The 17th Amendment to the U.S. Constitution, which provided for direct election of senators, reads: "...the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct."

That means, Brand said, that Burris should be seated but that the legislature could pass a law setting up an election in the near future.  Blagojevich could veto such a law, but the legislature could override.

If the Senate votes to exclude Burris, then the former state attorney general could go into federal court to seek an emergency order to seat him, Brand said. Brand thinks that Burris could get such an emergency order.

But in this way, the Burris case could be trickier than the Powell case. By the time the U.S. Supreme Court ruled, Powell had been re-elected to the next Congress, the 91st Congress, and had been seated.  For that reason, the Supreme Court did not have to explicitly order Congress to seat Powell.

Some constitutional experts have pointed to Footnote 42 in the Powell opinion as presenting a problem for Burris. In that footnote, the court said that the issue of whether the House had properly judged the qualifications of a member might be a "political question" beyond the scope of judicial power. In other words, the Supreme Court might not second-guess a decision by a House of Congress that a member did not meet the qualifications set out in the Constitution.

Powell v. McCormack was controversial at the time it was decided in 1969. The decision was written by Chief Justice Earl Warren and the case was announced at the high-water mark of the Warren court's success in reshaping constitutional law. The court was criticized for having so easily sidestepped the political question doctrine to decide the case. 

It is difficult to predict how a Roberts court would act nearly four decades later when presented with a request to order a co-equal branch of government to seat a member.

The chief justice and some of the more conservative justices might be more reluctant than their Warren court predecessors to order the Senate to seat Burris. The conservatives might see this as an opportunity to revive the political question doctrine and limit judicial power. 

But Joel K. Goldstein, an expert on the presidency and constitutional law at Saint Louis University, questions whether the Roberts court is any less likely to challenge Congress. "Someone like Justice (Antonin) Scalia might very well view the text as stating three exclusive criteria which Congress could not expand," he wrote in an email. "In that case, he might well limit the Senate's ability to exclude Burris. It's not clear to me how Chief Justice Roberts or Justice (Samuel) Alito would view this question. I would not expect Justice (Clarence) Thomas to pay much deference to Powell. My point is simply that it's not clear to me that the conservatives would be more inclined to defer to Congress."

In recent history, the conservative majority has not been shy about confronting Congress, nor inserting itself into the political arena, as it did after the 2000 election in Nixon v. Gore.

The Senate Democrats' statements on Burris can be found on Sen. Durbin's website .

William H. Freivogel, a longtime St. Louis journalist, heads the journalism school at Southern Illinois University Carbondale.