Illinois Senator turned away at Capitol

[cotts135]

Senate appointee Roland Burris of Illinois today was turned away from the Senate building today thus setting up a huge legal battle from both sides..
What is indisputable here is that Governor Blagovich is under a cloud of suspicion on the way he runs his administration. But what is equally clear is that he is still the governor of Illinois and still has the authority to appoint a replacement to the Senate.
I think Harry Reid and the Senate is on thin ice here legally and will ultimately lose the battle.

[Hew]

I agree with you...imo, the Senate has no business telling a gov. who he may or may not appoint (outside of the Constitutional requirements to be a Senator). I've read as many articles/opinions that say the Senate has the right to not seat Burris as I have the opposite opinion. One thing that's for sure in the Senate's legal power is to seat Burris and then immediately vote to expel him (2/3 majority).

[YardleyLabs]

Senate appointee Roland Burris of Illinois today was turned away from the Senate building today thus setting up a huge legal battle from both sides..
What is indisputable here is that Governor Blagovich is under a cloud of suspicion on the way he runs his administration. But what is equally clear is that he is still the governor of Illinois and still has the authority to appoint a replacement to the Senate.
I think Harry Reid and the Senate is on thin ice here legally and will ultimately lose the battle.

You're right, it's a very slippery situation. However, I think the IL Secretary of State and the US Senate are both doing what little they can legally do to give the IL State Legislature time to act by either impeaching the Governor or changing the law on appointment. There's nothing wrong with that.

The fact is that the law requires the Secretary of State's signature on the appointment certificate. If that signature involves no judgment, why is it required? I expect that the courts will ultimately rule that the only valid grounds for refusing to sign would be if the Secretary believed that the Governor's signature were invalid. Until such a ruling is made, however, the limits of his authority are undefined.

With respect to the Senate, the Secretary's action makes things easy since currently there is no valid certificate of appointment and it would be wrong for the Senate to seat him. However, even if the Secretary signs the certificate, the Senate still has the right to seat new members implying a right to refuse to seat new members. The court could ultimately decide that the separation of powers precludes it from compelling the senate to act in the absence of evidence that their action evidences other, un-Constitutional behavior (e.g., discrimination). It should make for an interesting case and the outcome is not a given. What is a given is that it could drag on for weeks or months.

[cotts135]

The fact is that the law requires the Secretary of State's signature on the appointment certificate. If that signature involves no judgment, why is it required? I expect that the courts will ultimately rule that the only valid grounds for refusing to sign would be if the Secretary believed that the Governor's signature were invalid. Until such a ruling is made, however, the limits of his authority are undefined.

Would just like to correct you on one thing:From Illinois State law:
(15 ILCS 305/5) (from Ch. 124, par. 5):

Sec. 5. It shall be the duty of the Secretary of State: 1. To countersign and affix the seal of state to all commissions required by law to be issued by the Governor.
2. To make a register of all appointments by the Governor, specifying the person appointed, the office conferred, the date of the appointment, the date when bond or oath is taken and the date filed..... (emphasis added)

This to me makes it even more difficult for the Senate to support their position.

[YardleyLabs]

Would just like to correct you on one thing:From Illinois State law:
(15 ILCS 305/5) (from Ch. 124, par. 5):

Sec. 5. It shall be the duty of the Secretary of State: 1. To countersign and affix the seal of state to all commissions required by law to be issued by the Governor.
2. To make a register of all appointments by the Governor, specifying the person appointed, the office conferred, the date of the appointment, the date when bond or oath is taken and the date filed..... (emphasis added)

This to me makes it even more difficult for the Senate to support their position.

As I said, an official "duty" does not make it a rubber stamp. Otherwise, why is it required? Obviously, unless the secretary alleges some grounds for claiming an irregularity, he will presumably be compelled to sign ultimately. Until then, the Senate is off the hook. Will Illinois sit by and do nothing or will they act to restrict the Governor's ability to appoint? If they do, will the courts allow their action to be applied retroactively assuming that Burris has not been sworn it? Both interesting questions. What are the legal provisions for impeachment in Illinois? I don't know what the prosecutors have up their sleeves, but it may be difficult to show that any crime has actually been committed. Political horse trading is not actually a crime.

[badbullgator]

I am not sure why he accepted the appointment in the first place other than to stir up trouble. I don't know anything about the guy, but something seems a little odd about him to me

[Eric Johnson]

The Senate is just marking time, hoping for a better outcome. The Supremes have ruled that neither house may set qualifications, nor the states, that are greater than the Constitution's. See Powell v. McCormack.

Briefly....

"...But in Powell v. McCormack, it was conclusively established that the qualifications listed in cl. 2 are exclusive and that Congress could not add to them by excluding Members-elect not meeting the additional qualifications.

Powell was excluded from the 90th Congress on grounds that he had asserted an unwarranted privilege and immunity from the process of a state court, that he had wrongfully diverted House funds for his own uses, and that he had made false reports on the expenditures of foreign currency. The Court determination that he had been wrongfully excluded proceeded in the main from the Court's analysis of historical developments, the Convention debates, and textual considerations. This process led the Court to conclude that Congress' power under Article I, Sec. 5 to judge the qualifications of its Members was limited to ascertaining the presence or absence of the standing qualifications prescribed in Article I, Sec. 2, cl. 2, and perhaps in other express provisions of the Constitution."

The Powell decision was 8-1 with the 1 vote merely that the case was moot, nothing on it's merits. The Powell case was reaffirmed in U.S. Term Limits, Inc. v. Thornton in 1995 in that the qualifications laid out in the Constitution are exclusive and may not be changed by either Congressional nor state action.

So....unless Harry Reid can come up with something really creative, Burris is in. Even impeaching the Gov probably won't change that since the appointment occurred prior to impeachment and they don't have anything that says the appointment was improper.

Eric

[Hoosier]

This is a blog but interesting.

http://foxforum.blogs.foxnews.com:80...deseno_burris/

[Bob Gutermuth]

Art 1 Sec 5 of the US Constitution:

'Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide'

This section says that each house can decide who can be a member. The last time the Senate refused to seat a member was in the 1940s when Theodore Bilbo of Miss was refused his seat.

[mjh345]

Art 1 Sec 5 of the US Constitution:

'Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide'

This section says that each house can decide who can be a member. The last time the Senate refused to seat a member was in the 1940s when Theodore Bilbo of Miss was refused his seat.

That section does NOT say "that each house can decide who can be a member"
It DOES say they can be the judge of the qualifications of its own members. Said qualifications are set out elsewhere in the constitution; and are very basic