Burris Turned Away from Senate, Setting Up Constitutional Claim
Posted Jan 6, 2009 8:45 AM CDT
By Debra Cassens Weiss
Updated: The Senate has refused to seat Roland Burris, setting up the possibility of a constitutional showdown.
The former Illinois attorney general said he would take legal action, the Chicago Tribune reports. His quest to become the next U.S. senator from Illinois may be helped by a 1969 U.S. Supreme Court decision.
Burris was appointed by Illinois Gov. Rod Blagojevich, accused by federal prosecutors of seeking to sell the Senate seat vacated by Barack Obama. Senate Majority Leader Harry Reid had vowed to deny the post to Burris, citing the refusal of the Illinois secretary of state to sign Burris’ appointment papers.
Burris said in an interview on The Early Show that the law is on his side, the Associated Press reports. “As I read the U.S. Constitution," he said, it says the "governor shall fill a vacancy, and as a former attorney general of my state, I have no knowledge of where a secretary of state has veto power over a governor carrying out his constitutional duties."
Erwin Chemerinsky, the new dean of the UC Irvine School of Law, agrees with Burris. In an opinion column published by the Los Angeles Times, Chemerinsky says senators seeking to deny a seat to Burris are on “weak constitutional ground.” Their claim to have the power to exclude Burris could create a dangerous precedent, he asserts.
Both Chemerinsky and an article in the Washington Times cite a 1969 Supreme Court decision involving former Rep. Adam Clayton Powell Jr., who was re-elected despite allegations that he misappropriated funds from a House committee. The decision, Powell v. McCormack, said the House could not exclude a member-elect who meets the constitutional requirements for membership.
In the case of a senator, Article 1 sets out the requirements, and Burris meets them, Chemerinsky writes. They require a senator to be at least 30 years old, a citizen for at least nine years, and a resident of the state he or she represents. Chemerinsky also cites the 17th Amendment and Illinois law, which gives the state governor the power to fill Senate vacancies.
“The taint of Blagojevich's alleged crimes does not justify ignoring the Constitution,” Chemerinsky writes. “For the last eight years, the Bush administration has ignored or twisted the Constitution to serve what it believed were higher ends. It would be an enormous mistake, as a new administration prepares to take charge, for Democrats to send the Senate down that same path.”
Updated at 10:10 a.m. to include news of the Senate's refusal to seat Burris.