Why Roland Burris will be seated in the US Senate: The Seventeenth Amendment to the United States Constitution: "When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided, That 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."
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This is pretty clear. Blagojevich is still the governor because the legislature hasn't impeached him yet, even though it was obvious at least a year ago that they needed to. There is a vacancy. He has a duty to fill it. He just did. The legislature also hasn't gotten around to making this a temporary appointment pending a special election, so I think that means Burris has the job until the term expires in 2010.

Now Jesse White, the Illinois Secretary of State, claims he will refuse to certify this appointment to the US Senate. I think he can be forced to do that by writ of mandamus. His function here is limited. He just certifies that the governor made the appointment of a particular person. He has no other discretion.

Then comes the claim by Harry Reid that the Senate will not accept Burris in any event. They will rest this assertion on Article I of the US Constitution. That reads in part as follows: "Section 5: Each House shall be the judge of the elections, returns and qualifications of its own members...Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member."

Reid apparently thinks this means he and his pals can on their own authority decide not to seat a Senator who was duly elected or appointed. That is ridiculous. They can pass on the "qualifications" of the person, and those qualifications are defined in Article I as well:

"No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen..."


The Senate's function is limited to ruling on age, citizenship, and residency. That's it. The US Supreme Court said as much in Powell v. McCormack, when the House tried to prevent Adam Clayton Powell from taking his seat because he was charged with making personal use of public funds and evading court process. The Supreme Court said, "...In judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution. Respondents concede that Powell met these. Thus, there is no need to remand this case to determine whether he was entitled to be seated in the 90th Congress. Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership."

That covers the Burris situation pretty well, except that Burris has an even stronger case than Powell because Burris isn't accused of doing anything wrong. The wrongdoing came earlier and concerned other potential appointees to that seat. If Powell couldn't be excluded by the House for his own apparent wrongdoing, certainly Burris can't be excluded by the Senate merely because the Governor who appointed him is under a legal cloud.

Maybe all these folks will ignore the limits on their authority, but I think Blagojevich may very well win this set in the end, just like he won the pathetic excuse for a legal challenge put forward by Illinois Attorney General Lisa Madigan.

One final thought: Blagojevich abuses his power, so the Attorney General abuses her power by asking the Illinois Supreme Court to abuse their power. They won't, so now the Secretary of State and the US Senate, seconded by the incoming President, say they will abuse their powers to get even for the governor's previous abuses of power. Is there any public official in this entire daisy chain who has any understanding of this simple fact: in this country, government power is limited in specific ways, and those who occupy public offices are sworn to respect those limits? Anybody? Hello?