Monthly Archives: December 2008

Blago Forces 17th Amendment Refresher

When Blago named Roland Burris to Barack Obama’s seat he made the best decision open to a crazy/savvy chicago pol who faces impeachment and calls for immediate resignation. 

Blago’s defiance of Patick Fitzgerald, Obama and pretty much every elected leader in Illinois and the US Senate raises some really interesting questions about politics and the rule of law.   I think the appointment is legal, but politically disgraceful (but kind of brilliant).

Politically, Blago’s hubris in appointing Roland Burris to fill Obama’s seat defies even the promises made by his own lawyers.   But in picking Burris, Blago shows some real crazy like a fox thinking.  Of all the possible choices he could have made, the Burris selection is downright canny because it exploits America’s racial sensitivities and because Roland Burres is such an innocuous kind of guy.  Burris is a widely respected public servant, African American who opposed Blago in recent past gubernatorial elections, and says that as a former attorney general and DA he would have supported the recent efforts to have the Ill. supreme court remove Blago from office.  

But as an African American being appointed to the Senate that holds no other African American senators at the moment, Blago finds the softest spot in the american body politic underbelly where he now may claim some moral supremacy.  wow. amazing.  

And to have Bobby Rush, the man who beat Barack Obama in his first attempt at national office, speak on behalf of Burress’ appointment and in racial terms, Blago shows the political world he remains a canny politician, and he may be with us for awhile yet.  gotta give the guy his due for this.

Now that Burris has been appointed, the question is whether or not he can and should be seated when the new senate convenes in a few days.   It is unclear what can be done. The Senate can delay seating him, which Burris will challenge in court. The senate can seat him and then vote to expel him, but such an expulsion vote will prove to be racially explosive and distracting at a time when the new president will be trying to coalesce the congress and the country around his economic stimulus package. 

A quick glance at the 17th amendment to the constitution reveals that Blago has the right to appoint Burris assuming the Illinois legislature says he does.  

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: 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.

I think the 17th amendment gives some wiggle room for the Illinois legislature to act (tho perhaps it is now  too late) legislatively to carve out an exception to Blago appointment power.   The words, Provided, that the legislature… may empower…” also gives the legislature the authority to disempower the executive from making the appointment.  (what is given may be taken away)  In lieu of having tried in vain to go to the supreme court or to now go through months of impeachment proceedings, the legislature could have (at least tried) prevented a Blago appointment, but it didn’t. It was hoping that this guy it thinks is nuts would have instead done the rational thing which is not to appoint and to resign.  So much for crazy people acting rationally.

Although I do not think Burris will ever serve in the senate, it sure looks to me like he has the right to his appointment.  It is pretty clear that the appointment–whatever decisions are ultimately made– will be challenged in court, and in the meantime Illinois will have only one senator.  But as Chief Justice Marshall taught us 200 years ago in Marbury v Madison, even though the court has (authority) to engage in judicial review and to negate executive appointment, the politics of the times will help determine what finally happens.

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Please Stay Tuned

I’ve been away for awhile but will be starting up again shortly. 

see you soon.