Senate Appointment Showdown: Senatorial Powers to Exclude and Expel

In what may ignite a serious constitutional controversy, embattled governor Rod Blagojevich appointed Roland Burris to President Elect Obama’s vacant Senate seat today. The Governor, recently arrested and indicted on corruption charges for, among other things, allegedly attempting to sell Obama’s Senate seat, has ignored both calls to resign as well as warnings from the Senate not to appoint an Obama successor. The Democratic leadership in the Senate has specifically expressed its unwillingness to except Blagojevich’s appointment- saying that the appointment will “not stand”. What exactly will Congress do with the Burris appointment? What can congress do?

The answer it seems, regardless of the rhetorical blustering from Senate leaders, is that Congress will probably have to seat the governor’s appointment. The Supreme Court made clear in Powell v. McCormack that Congress has no power to “exclude” elected members who satisfy the constitutional qualifications for office. Though the two houses have the authority to “judge” the qualifications of their members, where a duly elected member meets the constitutional requirements- i.e. meets the age, residency, and citizenship requirements if Article I- then the member must be given his seat. In Powell, the Court held that the House of representatives could not exclude representative Powell, who at the time was under investigation for misappropriating congressional funds, when the voters of his district had chosen to return him to his seat. The House had no constitutional authority to exclude an elected member who was at least 25, was seven years a citizen of the U.S., and resided within the state he would represent. While Powell applied to a duly elected member of the House, one would assume that the same theory would apply to a duly appointed member of the Senate. Although many may argue that Burris was not duly appointed, regardless of the legal circumstances surrounding the Governor, until he is removed form office or resigns he still holds the powers of his office and therefore still holds the authority to appoint Obama’s Illinois Senate successor.

The only option for the Senate is to seat Mr. Burris, and then vote to expel him with a 2/3 vote. This potential move raises three interesting issues. First, from a practical standpoint, would Democrats in the senate be willing to expel a fellow Democrat (and likely a predictably solid democratic voter), even one appointed by Blagojevich, when every Democratic vote is essential to reaching that all important 60 vote majority? Second, Article 1 section 5 of the Constitution states: “Each house may determine the rules of its proceedings, punish its members for disorderly behaviour, and, with the concurrence of two thirds, expel a member.” It is unclear whether the disorderly behavior language modifies the expulsion power. Must a member first engage in some disorderly behavior before he/she is expelled from either the House or Senate? If that is the case, how can Burris be expelled when he has committed no disorderly act? Where he has committed no act at all? Third, is the Senate willing to set a precedent for expelling a member by vicariously applying to that individual the actions of another? Burris, has done nothing wrong (though accepting the governor’s appointment may not have been the best political move). Were the Senate to expel Burris, it would set a precedent for expelling a member who had committed no unlawful act. What would be next? Expelling a member for the actions of a family member? Expelling a member for belonging to the wrong party?

Before the Senate acts on this appointment, it should strongly, and thoroughly consider the effect an expulsion will have on the stability of the Senate as an institution. George Washington once said that the Senate acted as a saucer into which hot coffee is poured to cool. This is an issue that truly is in need of a cooling-off period.

Posted by Todd Garvey