Earlier this morning, Jane wrote a fantastic post, "Burris and Blago: What Happens Now?", that lays out most all of the concerns with the obstreperous position taken by Harry Reid and the Democratic leadership. I would like to follow up on a couple of legal points inherent in the discussion.

Illinois Secretary of State Jesse White: As you have probably heard, Illinois Secretary of State Jesse White has refused to certify Blagojevich’s appointment of Roland Burris. The problem I see with this is that there is no legal basis whatsoever for SoS White’s conduct in this regard.

White appears to be abrogating Illinois law all by himself, and he simply does not have the power to do that. Signing the certification is a ministerial act, not an established right of veto. The decision on who to appoint is the governor’s and the governor’s alone under Illinois law; there is no power promulgated for the SoS to have decision making authority. If White can simply refuse to sign the certification, and that stops the process in it’s tracks, he would have unmitigated veto power over the appointment. He does not.

Burris has obviously figured this out and has brought action demanding the Secretary of State endorse the certification.

Burris’s lawyers argued that White’s duties are strictly ministerial and that he doesn’t have the discretion to withhold his certification of Blagojevich’s selection.

“Any additional state requirement that Roland Burris must seek or obtain approval of the secretary of state to qualify as U.S. senator would be unconstitutional,” Wright said in the filing.

Whether you like Burris or not, whether you despise Blagojevich or not, Burris has now been duly appointed by a sitting governor; his appointment, absent evidence to the contrary, is valid on its face. White should sign the certification forthwith, refusal to do so is outside of his authority and is costing the citizens of Illinois valuable court time, resources and money; effectively a breach of White’s fiduciary duty to the state.

Harry Reid has lobbied against Illinois having a special election to fill Obama’s Senate seat, which they could easily hold concurrent with the election they will be forced by law to have for Rahm Emanuel’s open seat in Illinois’ 5th district. Reid is likely personally responsible for there being no opportunity for the public to vote on the next senator; now Reid is urging extra-legal (effectively ultra-vires) action by Illinois. He should butt out.

Powell v. McCormack: But wait, there is more! Yep, Harry Reid, who couldn’t be bothered to bring his legislative acumen to bear to protect the 4th Amendment in the FISA battle, is now going to expend every inch of his soul, including having capitol police physically restrain a duly appointed black man from taking his seat in the Senate. Again, simply brilliant optics. Or not; really not. As Jane indicated, there are basically two views on the propriety of this blocking action, that is not viable (the "Lemieux position") and that it is complicated, but viable (the "Balkin position").

I have read both Balkin and Lemieux. In my somewhat suspect eyes, Lemieux has the, by a good measure, more legally sound take. Doesn’t mean a more contrived view like Balkin’s won’t carry the day if this matter is litigated; but I sure think Lemieux’s is a lot cleaner and truer to Powell v. McCormack and the Constitutional intent.

…missed in many discussions about the Burris appointment is the fact that the Senate is probably unable to prevent him from being seated as a matter of constitutional law. The Supreme Court ruled 8-1 (and 8-0 among justices deciding on the merits) in Powell v. McCormack that "in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution." It is possible to distinguish the cases — the fact that Burris is appointed obviously mitigates the problems with Congress interfering with the integrity of elections that Douglas discusses in his concurrence. Still, the bottom line of Warren’s majority opinion is unequivocal and directly on point; if Burris were to litigate an exclusion a lower court would almost certainly rule in his favor, and I doubt that the Supreme Court would overrule. The Senate could expel him after seating with a 2/3 majority, but (absent strong evidence that Burris obtained the appointment illegitimately) this seems unlikely. Reid’s remedy is likely to be to prevent him from joining the Democratic caucus.

Again, we don’t have to like it, but the better take on the law rests with Burris being seated pursuant to his appointment. If there is no evidence of corruption or wrongdoing with his appointment process (and acts he took that you disagree with when he was previously in elected office do not count in that consideration), and there is none I have seen, Burris ought to be seated so that Illinois is fully represented and so that Democrats have a full complement of Senators for the difficult work that will start on January 20. Harry Reid is making an ass out of himself and Democratic Leadership (to the limited extent there actually is Democratic Leadership).

You have to hand it to Reid, though — managing to look less responsible and likable than Rod Blagojevich is a very impressive feat of sheer political incompetence.