Problem Number 2, misstating the HOLDING in Powell:
The Supreme Court's conclusion could not be clearer or more on point: "In short, both the intention of the framers, to the extent that it can be determined, and an examination of basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote."
To take this excerpt from Powell and turn it into the erroneous notion that the Supreme Court has established a firm rule that controls the Burris situation is problematic to say the least. It is wrong in my view. Powell does not militate that Burris can not be excluded based on Article 1, Section 5. In his concurrence, Justice Douglas stated the the rule of the Powell case was the following:
While I join the opinion of the Court, I add a few words. As the Court says, the important constitutional question is whether the Congress has the power to deviate from or alter the qualifications for membership as a Representative contained in Art. I, § 2, cl. 2, of the Constitution. Up to now, the understanding has been quite clear to the effect that such authority does not exist. . . . Contests may arise over whether an elected official meets the "qualifications" of the Constitution, in which event the House is the sole judge. But the House is not the sole judge when "qualifications" are added which are not specified in the Constitution.
(Emphasis supplied.) Clearly Powell concerned the adding of qualifications by a House of Congress beyond those enumerated in the Constitution, not the judging of "elections and returns. The concern of Powell was not about the process by which a representative was chosen, but about the exclusion of a properly chosen representative who was deemed "unqualified" by the House for reasons not enumerated in the Constitution. Justice Douglas, again in concurrence in Powell:
A man is not seated because he is a Socialist or a Communist.
Another is not seated because, in his district, members of a minority are systematically excluded from voting.
Another is not seated because he has spoken out in opposition to the war in Vietnam.
The possible list is long. Some cases will have the racist overtones of the present one. Others may reflect religious or ideological clashes.
At the root of all these cases, however, is the basic integrity of the electoral process. Today we proclaim the constitutional principle of "one man, one vote." When that principle is followed and the electors choose a person who is repulsive to the Establishment in Congress, by what constitutional authority can that group of electors be disenfranchised?
(Emphasis supplied.) Roland Burris was elected by no one. Indeed, the basic integrity of the process of Burris' appointment is in serious doubt - in my view, irredeemably tainted.
The man Roland Burris has not been excluded. The appointee of a Governor credibly accused of trying to sell the seat for which he made the appointment is the person excluded. Would Professor Chemerinsky be so worried if instead of discussing a corrupt appointment process, we were discussing a fraudulent election? What would be the Constitutional principle behind that distinction?
Personally I doubt this episode will be a precedent for much of anything. But let's suppose for a moment it is a precedent for all posterity. Is it, as Chemerinsky thinks:
creat[ing] a dangerous precedent. It could open the door to the Senate or the House overturning the will of the people and excluding representatives under one or another pretext. If Burris -- whose appointment meets the legal test, no matter what you think of Blagojevich -- is not seated, other properly elected (or appointed) representatives also are at risk.
Or is it creating a narrow precedent that blocks an appointment by a Governor credibly accused of having tried to sell the very appointment he is trying to make? I think it is the latter.
I would also ask this question - would seating Burris create a dangerous precedent whereby the Senate must accept all "lawful appointees" - even those garnered by corrupt means? As a Constitutional question, what is the difference in the Constitutional power exercised by the Senate in either case?
It is not unconstitutional or wrong to have a different judgment than Erwin Chemerinsky regarding when the Senate should use its power pursuant to Article 1, Section 5. Disagreeing regarding the wisdom of its use is not the same thing as saying such use is unconstitutional. Chemerinsky, like many pro-Burris commenters, conflate the two. Chemerinsky, like other pro-Burris commenters, is wrong too.
Speaking for me only
