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Do Democrats have the power to block Blago? December 31, 2008

Posted by neoavatara in Politics.
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Harry Reid, Senate Majority leader, quickly came out yesterday and said the senate would block Roland Burris’s appointment to the U.S. Senate by embattled Illinois Gov. Rod R. Blagojevich (D).

Barack Obama quickly supported the Senate Democrats, and blasted Blago’s appointment, though he had nothing but praise for Mr. Burris.  But he said ultimately any pick would be tainted by scandal.

But does the Senate have the power to block the appointee?  This is up for serious debate.  Senate Democrats point to Article I, Section 5 of the Constitution, which says “each House shall be the Judge of the Elections, Returns and Qualifications of its own members.”  This would imply that they have the right to block the appointment.

Except for one small problem; as judge of elections, which election is the senate judging?  Mr. Burris will be a non-elected member of the Senate.  The election that they would have the right to evaluate is not Burris’s, but  Governor Blagojevich’s.

Constitutional experts claim that it is not as simple as either Harry Reid or Mr. Obama claim.  They point to the 1969 Supreme Court decision in the case of Adam Clayton Powell Jr. of New York.  The court found that the House of Representatives could not prevent Mr. Powell from taking his seat, despite being accused of financial impropriety.  As long as he met the constitutionally determined qualifications for age, citizenship and residency, the House had to accept his membership.

The only other recent case was that of a 1947 Senate dispute over whether the white supremacist Theodore G. Bilbo of Mississippi should be seated after accusations of voter suppression and campaign corruption. In that case, the Senate found itself deadlocked, and Mr. Bilbo died before the disagreement could be resolved.

The course of action seems littered with pitfalls.  The Senate could accept the appointment, and the Democrats would be tarred with corruption charges.  They could deny Mr. Burris’s seat, in which case an obvious Court action will be filed, and no senator from Illinois would be seated for some time.  In any case, it appears that Blago has thrown a gorilla-size monkey wrench into the early part of the 111th Congress.