Blagojevich Announces Senate Appointment

Can Burris be Stopped from Taking Obama’s Senate Seat?

Dec 31, 2008 David J. Shestokas

Illinois Governor Rod Blagojevich announced his choice to succeed Barack Obama in the Senate. The Governor has been arrested and impeachment is looming.

Illinois Secretary of State Jesse White has said he will not certify the governor’s appointment with the Seal of the State of Illinois. Senate Majority Leader Harry Reid and 50 United States Senators have announced they would not allow anyone appointed by Blagojevich to serve in the Senate. The question becomes whether they actually can deny a Senate seat to former Illinois Attorney General Roland Burris because of the pending criminal charges and impeachment proceedings against Governor Blagojevich related to an attempted sale of Barack Obama's Senate seat in return for campaign contributions.

The Governor’s Authority to Fill a Senate Vacancy

When Barack Obama resigned his seat in preparing to assume the presidency, a vacancy in the US Senate was created. The Seventeenth Amendment to the US Constitution created a provision which enables a state's governor, authorized by that state's legislature, to appoint a Senator in the event of a vacancy, until an election is held to fill the vacancy. Illinois law provides: “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…” When reading the US Constitution together with the Illinois law, it appears that Governor Blagojevich’s authority to fill the Senate seat is absolute.

Secretary White’s Role in Certifying the Appointment

Secretary White has indicated that he will not certify any document as being an official act of the State of Illinois which purports to be an appointment of a Senator by Blagojevich. The Secretary of State is the official keeper of the Seal of the State of Illinois and is responsible for attaching the seal to official Illinois documents.

The Secretary has no legal authority to approve or disapprove of the Blagojevich choice. Attaching the seal is analogous to the role of a notary in affirming a signature. The notary is simply authenticating the signature, not participating in the content of the document. If the lack of a seal were to be a stumbling block in seating Roland Burris in the United States Senate, a proper court order would likely order Secretary White to seal the document.

Secretary White has admitted publicly in radio interviews that his role is not one of policy in this matter, and that his refusal to certify an appointment document would not likely stop the appointment.

The United States Senate Authority to Judge Members’ Qualifications

Article I, Section 5 of the US Constitution provides: “Each House shall be the judge of the … qualifications of its own members…” This would appear to allow the Senate to deny a seat to a Blagojevich appointee. The US Constitution sets forth three qualifications for a United States Senator in Article I, Section 3 as follows:

Be at least 30 years old
Be a US citizen for at least nine years
Live in the State he/she is to represent

In 1969, the United States Supreme Court interpreted those two clauses together in the case of Powell v. McCormack. The House of Representatives had denied a seat to Adam Clayton Powell because of legal problems surrounding Mr. Powell. The Court said that a House of Congress (of which the Senate is one) did not have the authority to deny a seat to a properly credentialed candidate that met the qualifications outlined in the Constitution.

Mr. Burris is 71 years of age, a lifelong citizen of the United States and lives in Illinois. He meets the constitutional qualifications.

No Legal Authority Exists to Stop the Blagojevich Appointment

Despite the statements of Illinois Secretary of State White, Senate Majority Leader Harry Reid and 50 other United States Senators, they do not have the authority to deny a Senate seat to a candidate duly appointed under the United States Constitution and the laws of the State of Illinois.

The copyright of the article Blagojevich Announces Senate Appointment in Law, Crime & Justice is owned by David J. Shestokas. Permission to republish Blagojevich Announces Senate Appointment in print or online must be granted by the author in writing.