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celticlord2112 -> Illinois Irony (1/1/2009 12:28:06 PM)
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Regardless of how crass or corrupt Rod Blagojevich might be, one thing seems painfully clear: He understands law better than those seeking his removal from office.
Senate Majority Leader Harry Reid has pronounced that no Blagojevich appointee will be seated in the U.S. Senate, relying on the power afforded both Houses of Congress under Article I §5 of the Constitution to "judge the qualifications...." of their respective members. However, Reid's pronouncement conveniently ignores Powell v. McCormack, which explicitly refutes Reid's interpretation of that clause:
quote:
In order to determine the scope of any "textual commitment" under Art. I, § 5, we necessarily must determine the meaning of the phrase to "be the Judge of the Qualifications of its own Members." Petitioners argue that the records of the debates during the Constitutional Convention; available commentary from the post-Convention, pre-ratification period, and early congressional applications of Art. I, § 5, support their construction of the section. Respondents insist, however, that a careful examination of the pre-Convention practices of the English Parliament and American colonial assemblies demonstrates that, by 1787, a legislature's power to judge the qualifications of its members was generally understood to encompass exclusion or expulsion on the ground that an individual's character or past conduct rendered him unfit to serve. When the Constitution and the debates over its adoption are thus viewed in historical perspective, argue respondents, it becomes clear that the "qualifications" expressly set forth in the Constitution were not meant to limit the long-recognized legislative power to exclude or expel at will, but merely to establish "standing incapacities," which could be altered only by a constitutional amendment. Our examination of the relevant historical materials leads us to the conclusion that petitioners are correct, and that the Constitution leaves the House [Footnote 44] without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.
The 17th Amendment delegates to the individual states the power to determine the means of filling their Senatorial vacancies, explicitly including the option of delegation the power of appointment to the state's chief executive:
quote:
... the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
Illinois statute reflects this by empowering the governor to fill a vacancy until the next election:
quote:
When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.
Regardless of the charges arrayed against Blagojevich, one fact is undeniable: He is the current Governor of the State of Illinois, and his powers as Governor are neither diminished nor restricted. That is the the judgment of the Illinois Supreme Court, when it denied Attorney General Lisa Madigan's request to have Blagojevich unfit to serve--unless and until he is impeached, Rod Blagojevich is the Governor of the State of Illinois.
The Illinois Legislature has the capacity to remove the gubanatorial appointment power, as it is granted by statute and thus may be revoked by statute--a 3/5 vote of both houses of the Legislature would render the legislation veto-proof, per Article 4 §9 of the Illinois Constitution. As the Lieutenant Governor is also part of the Executive Branch, explicitly identified as such in the Illinois Constitution, arguably the Legislature might even have dodged calls for a special election by transferring the appointment power to the Lieutenant Governor, even while Blagojevich remains in office pending a presumably successful impeachment process.
The Legislature demurred, however, and no such bill has even been introduced in either house. Now, U.S. Senate leaders are left with hoping that Illinois Secretary of State Jesse White can prevail in his refusal to certify the Blagojevich appointment--which is unlikely, given that Blagojevich's capacity to act as Governor has already been adjudicated by the Illinois Supreme Court, and that the statute imposes no requirement for certification by the Secretary of State for the appointment to stand.
Thus Blagojevich was handed a slim opportunity to turn the tables on his adversaries, and has taken full advantage. Roland Burris is by all outward appearances Consitutionally qualified to serve in the Senate, and no evidence has surfaced thus far linking him to Blagojevich's crass efforts to "auction" off the appointment. While Blagojevich himself appears irredeemably corrupted, an argument that his appointment of Burris is similarly corrupted is far less persuasive, undermined by the failed efforts to judicially oust him: He is able to act, he is authorized and even required to act to appoint someone to fill the vacant Senate seat, and, per the laws of both the United States and the State of Illinois, he has acted.
In addition to the certain delight of thumbing his nose at the pontifications of Harry Reid as well as the impeachment efforts within the Illinois House of Representatives, Blagojevich might also have strengthened his hand against impeachment--a long standing maxim of common law, qui tacet consentire videtur (he who keeps silent is assumed to consent) renders the Illinois Legislature complicit in his appointment of Burris. In choosing not to alter Illinois statute to remove his appointment power, they in essence validated the continuing effect of that power; if the Legislature consents to his continued statutorily derived powers, their capacity to impeach becomes suspect (a process which is murky and ill-defined already); the Legislature has also left itself in the uncomfortable position of having the impeachment trial itself stand as an opening trial on the merits of U.S. Attorney Patrick Fitzgerald's charges (the oath of Illinois Senators when trying an impeachment is to "do justice according to law.")--which puts the U.S. Attorney somewhat at odds with the Legislature (already, Fitzgerald has asked the Legislature not to subpoena Rahm Emmanuel and Valerie Jarrett).
Thus, by making the Burris appointment, Blagojevich has made his impeachment a political necessity for politicians from Springfield to Washington, yet dramatically raised the bar for that impeachment--all because he knows the statutes better than his opponents.
A sad irony when the putative criminal has a finer grasp of law than those who would indict, impeach, and incarcerate him.
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