The controversy over the appointment of Roland Burris as the Senate replacement for President-Elect Barack Obama is another reminder of how far we have strayed from the constraints imposed on Congress by the Constitution. It also provides a good object lesson for the American people. Politically the appointment of Burris to replace Obama in the Senate is a messy tangle of political intrigue. Constitutionally it is simple and straightforward.
Burris was appointed by Illinois Governor Rod Blagojevich. Blagojevich has been accused by Patrick Fitzgerald, the U.S. Attorney of attempting to sell the Senate seat for personal gain. However, Blagojevich has not been indicted or convicted. The State Legislature has expressed the intention of impeaching the Governor, but thus far have not done so.
Until Governor Blagojevich resigns or is impeached by the Legislature, he is still the legal Governor of Illinois and entitled to exercise all the duties of that office. One of those duties is to appoint a replacement Senator to fill out the term of Barack Obama. Amendment 17 to the Constitution provides two methods for filling Senate vacancies.
(3) “When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: (4) 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.” ~Amendment 17, Section 1, clauses 3 and 4.
Regardless of the ethical challenges Blagojevich may be afflicted with, the appointment was legal and, according to the Constitution, should stand until the voters elect a replacement, either through a special election or when the term expires in 2010. Since, according to this Amendment, only the Governor is empowered to issue a “Writ of Election” and he has not indicated a willingness to do so, it seems we are stuck with Burris. If the Legislature has not already given the Governor appointment authority by a prior statute, their only recourse seems to be obtaining a Writ of Mandamus forcing the Governor to call an election. In the meantime Burris is the legally appointed interim Senator.
Senate Majority Leader, Harry Reid has stated that he would not allow Burris to be sworn in when he arrives in Washington, and when Burris showed up January 6, he was refused admittance. The question then becomes, on what Constitutional ground does Reid stand? A good place to start would be with the office of “Senate Majority Leader”.
The office of Majority Leader is not a Constitutional office. The Constitution authorizes the Senate to elect a President Pro Tem and any other officers they deem necessary. However, the Constitution does not authorize the Senate to assign Constitutional powers to those officers. The only Constitutional officers of the Senate are The President of The Senate and the President Pro Tem to serve in the President’s absence.
Article 1.3.6 “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”
Article 1.3.7 “The Senate shall choose their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.”
By tradition the office of Senate President has become ceremonial, with the Vice-President taking the chair only on special occasions. However, this practice is not born out by the Constitution or the early history of the office, particularly the Vice-Presidencies of John Adams, Thomas Jefferson and John C. Calhoun who served as Vice-President and President of the Senate under two separate Presidents.
(For more on this see “Thomas Jefferson’s Advice to Sarah Palin” and “Sarah Palin as President of the Senate”.)
The intention of the Founders was that the office of President of the Senate should be the second highest office in the government, next to the President. This is the logical conclusion from three Constitutional facts. (1) The title itself implies executive authority. (2) The President of the Senate is the only nationally elected officer in the Legislative Branch. (3) The Senate is charged with legislative responsibilities effecting the nation as a whole, such as the ratification of treaties, and the ratification of Executive Branch appointments, including Justices of the Supreme Court. In addition the Senate is established as the court for trying impeachments.
It is inconceivable that the Founders should intend that the Senate Executive should be someone beholden to a political party and not necessarily the welfare of the nation. The practice of allowing the Senate Majority Leader to function as President of the Senate is clearly unconstitutional and the usurpation of responsibilities assigned by the Constitution to the Vice-President.
Further evidence of this is found in the early history of the Republic. John Adams, the first Vice-President under George Washington ruled the Senate with an iron hand. So much so that the Senators rebelled near the end of his first term causing him to modify his management style. Thomas Jefferson, who served as the second Vice-President under John Adams counts his years as President of the Senate as the most important years of his political career. He credits his opposition to the Federalist majority in Congress with saving the Constitution and the Republic.
Harry Reid’s refusal to allow Burris to take the oath of office clearly oversteps his authority, leaving the question as to whether the entire Senate has the authority to refuse to seat him. Reid gives as his reason the belief that Burris is unqualified for the position because of the controversy surrounding his appointment. The Constitutional authority for making such a judgment is based on Article I, Section five which states “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…”
The function of a judge is to apply the law or rules to the case at hand, not to make up the rules, or legislate new laws. The Constitutional qualifications for a Senator are three in number, (1) at least thirty years in age, (2) nine years a citizen of the United States and (3) an inhabitant of the state at the time of his election or appointment. The fourth implied qualification is that he be legally elected or appointed. Article I, Section 3, Clause 5.
Senator Burris meets all of these qualifications and therefore he is the Junior Senator from Illinois. After he is sworn in a super-majority of the Senate may expel him, but only after showing he has engaged in misbehavior. Article I, Section 5, Clause 3. In this case as in hundreds of others the Senate is attempting to circumvent the Constitution for political purposes.