Seat Burris

Erwin Chemerinsky, Dean of the UC Irvine Law School, noted constitutional scholar, and renowned among recent bar examinees as the guy who memorized three hours worth of con law outline, lays out a pretty good case why Burris should be seated by the Senate:

The relevant provision of the Constitution is found in Article I, Section 5. It says: "Each house shall be the judge of the elections, returns and qualifications of its own members." But the Supreme Court has been clear that these words do not bestow on the House or the Senate unfettered discretion in deciding whom to seat.

Chemerisnky notes that in Powell v. McCormack, Chief Justice Warren, writing for a 7-1 majority, held that "The Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets the requirements for membership expressly provided in the Constitution." Applied to the Senate, those requirements are Burris be at least 30, be a U.S. citizen for 9 years, and be a resident of Illinois, all three of which he unquestionably meets.

Those who wish to block Blagojevich's appointment are also mustering a second constitutional argument, citing Congress' stated power to decide "elections" and "returns" of its members. The claim is that Burris was not properly selected and thus the Senate can exclude him. The problem here is that Burris unquestionably was lawfully selected. According to the 17th Amendment, "When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies." Illinois law gives this power to the state governor, and that is Blagojevich until he is impeached and found guilty.

The Supreme Court's conclusion could not be clearer or more on point: "In short, both the intention of the framers, to the extent that it can be determined, and an examination of basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote."