Looking Ahead to a Constitutional Crisis


Who But The One Can Save Us?

I’ve spoken with a Senate source regarding the process by which Roland Burris will (or won’t) be seated in the U.S. Senate. First off, have a look at Rule 2 of the Senate:

The presentation of the credentials of Senators elect or of Senators designate and other questions of privilege shall always be in order, except during the reading and correction of the Journal, while a question of order or a motion to adjourn is pending, or while the Senate is voting or ascertaining the presence of a quorum; and all questions and motions arising or made upon the presentation of such credentials shall be proceeded with until disposed of.

The question of whether Burris shall take his seat or not is a privileged matter; the Senate cannot avoid doing something about it. This is one case where Senator Reid cannot simply pretend that the credentials were never received.

According to a Senate staffer familiar with the process, it’s likely that the Secretary of the Senate will receive Burris’ credentials from Governor Blagojevich prior to the start of the new Congress (and the objection of the Illinois Secretary of State is reportedly irrelevant to the issuance of those credentials). On that first day, the roll call of Senators to be sworn in will then include Burris’ name. Senator Reid — or someone else — will object to Burris taking the seat, and the Democratic majority will vote to refer the matter to the Senate Rules Committee for review. It is a foregone conclusion that the Rules Committee will recommend against seating Burris, and that recommendation will be affirmed by a Senate vote.

Assuming that nothing happens to resolve this dispute, Burris and the State of Illinois will presumably take Reid and the Senate to court — since the Supreme Court made clear in Powell v. McCormack that the Senate cannot reject a Senator on other than the straightforward question of eligibility for the office. And it is entirely conceivable that this fight could end with the court mandating that the Senate seat Burris.

And what would Harry Reid do then?

This could come to resemble Florida, 2000 — particularly if the Democrats lack votes to pass some elements of Obama’s agenda. And it seems that the only person in position to prevent such a crisis — the only person blessed with ties to all the major players — is Barack Obama. When will he step in to forge a solution that treats all sides fairly?


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Breaking on Fox...Blago

jdub19 Tuesday, December 30th at 5:49PM EST (link)

lawyer just resigned….

” Got to love the Lord for making things like that.”
Morally Compromised

 

Expellusion - the only recourse

blh1976 (Diary) Tuesday, December 30th at 6:10PM EST (link)

I agree, and it looks like the Senate will have to accept Burris’ appointment and then expel him. Section 5 of Article 1 only gives the Senate (and the House) the authority to judge elections, returns and qualifications. It also allows the Senate to establish its own rules, but those rules only “determine … proceedings.” Whether to seat a senator doesn’t seem to be part of the rule making, and clearly, Burris is qualified, constitutionally, to serve. Reid and his comrads have to seat him.

Now, for the politics…

ATTENTION ALL REPUBLICAN SENATORS: Please step away from this situation. Do nothing! This is an internal democrat matter, and they are doing a fine job of screwing themselves over without your help.

Blago Plays Santa To Republicans, Grinch To Reid & Obama

rcov092 (Diary) Wednesday, December 31st at 12:23AM EST (link)

he rolled a stinky, ickybomb right into the middle of the room. You have to admit, this is a guy you do not want to meet in a street fight without heavy artillery.

I agree, Repubicans, step away for the stinkbomb. Do not Touch it, run as fast as you can the crowd of Democrats in the room will ruin your clothes when their heads explode.

“Not One Red Dime for the NRSC or NRCC till they stop trying to elect liberals”

 

I have

Warner Todd Huston (Diary) Wednesday, December 31st at 1:00AM EST (link)

I have to agree with you on the role the GOP should (or rather shouldn’t) play on this. Let them play in their own sandbox.

———-
Be sure and Visit my Home blog Publius’ Forum. It’s what’s happening NOW!

 
 

"Lynch" Burris?

BillM (Diary) Tuesday, December 30th at 6:24PM EST (link)

Based on the remarks today by Rep. Rush, every liberal who ever criticized Justice Thomas for his use of the phrase “high-tech lynching” during his confirmation hearings owes the Justice both public & personal apologies immediately.

For those of you more ‘well-connected’ than I, please forward this along to every conservative website & commentator you can think of.

And quite frankly, Focus On The Family censoring Glenn Beck due to his Mormon faith is equally disgraceful, IMO. Guess a lot of so-called conservatives prefer being backbench whiners to being in charge and having the responsibility to get things done.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

Can you expand on that?

GregInFla (Diary) Wednesday, December 31st at 12:43AM EST (link)

What did you mean about FOTF censoring Beck? I am a fan/financial supporter of both, so this intrigues me.


– A true evolutionist would let endangered species die off. Think about it.
– The sign outside the courthouse said no signs allowed. So I took it down.
– Atlas Shrugged is now on the non-fiction aisle at Amazon.

Dobson "Censoring" Glenn Beck

BillM (Diary) Wednesday, December 31st at 2:28PM EST (link)

http://www.freerepublic.com/focus/news/2155393/posts?page=189

Cowardly and shamful, and the attitude of a small percentage of Evangelicals towards Mormons is no different than that of radical Muslims towards Jews.

Note: I am neither Evangelical nor Mormon, tho I’ve spent most of my life in Salt Lake City, and most of my cousins are Mormon.

STEVENS, J., filed a dissenting opinion, in which SCALIA, J., joined.

Doesn't sound like censorship to me (nt)

Neil Stevens (Diary) Wednesday, December 31st at 2:30PM EST (link)

RS contributing editor, technical administrator, and “a hardy variety of crabgrass.”
Read the RedState Posting Rules

Unlikely Voter: Poll Analysis, Election Projection.

“I rejoice that America has resisted.” – William Pitt, the Elder

 
 
 
 

It won't happen...

cookcountyconservative (Diary) Tuesday, December 30th at 6:28PM EST (link)

Accordiing to Jesse White, the IL Secretary of State, under IL law the Governors appointment must be submitted to him and certified before it is presented to the Senate and he say’s he will not certify the appointment or submit the appointment to the Senate for them to accept.

Jesse White made his position on this public a couple weeks ago. This whole thing is another dog-and-pony show by Blago. Boy there are a lot of sphincter’s tightening in Illinois – this guy has no shame and he’s going to take down who ever he can with him.

Makes me what to break out in song – “Oh Happy Day”!

So...

rbdwiggins (Diary) Tuesday, December 30th at 10:23PM EST (link)

The Illinois Secretary of State has stated publicly that he will refuse to carry out the constitutional responsibility of the office.

Unless Sec. White can prove Roland Burris is ineligible, unfit to serve or personally involved in the Blagojevich Scandal, White has no legal basis to deny certification.

In other words, Sec. White’s refusal to sign the document on political grounds would only be a symbolic jester, because his signature is not required. As long as Roland Burris’ credentials are in order, Gov. Blagojevich can still take the appointment to the Senate.

“Well, the trouble with our liberal friends is not that they are ignorant, but that they know so much that isn’t so.” – Ronald Reagan

I agree; rules are rules

Jeff Walden (Diary) Wednesday, December 31st at 1:56AM EST (link)

Yeah, if that’s what this comes to Blagojevich should sue to have a writ of mandamus issued, and given the way the Illinois courts struck down the attempt to have him ruled unable to carry out the duties of his office (rightly, in my opinion — allowing disability due to political disagreement [for now, at least] would be a disastrous precedent), I would be astounded if they didn’t agree.

 
 
 

Just off the dashboard

kowalski (Diary) Tuesday, December 30th at 6:35PM EST (link)

This is a photograph taken of the instrument cluster of Rod Blagjojevich’s car, in terms of how he’s made a mess of things for his fellow party members.

DEMOTACH_RB

 

Blago to Obama

10ksnooker (Diary) Tuesday, December 30th at 7:13PM EST (link)

I got you right by the ….. Your move big guy.

Obama's Statement

kowalski (Diary) Tuesday, December 30th at 7:28PM EST (link)

He is now on the record as well.

Obama issued the following statement in which he disagreed with the appointment:

“Roland Burris is a good man and a fine public servant, but the Senate Democrats made it clear weeks ago that they cannot accept an appointment made by a governor who is accused of selling this very Senate seat. I agree with their decision, and it is extremely disappointing that Governor Blagojevich has chosen to ignore it. I believe the best resolution would be for the Governor to resign his office and allow a lawful and appropriate process of succession to take place. While Governor Blagojevich is entitled to his day in court, the people of Illinois are entitled to a functioning government and major decisions free of taint and controversy.”

Let’s see how strong Rod’s grip is.

 
 

Burris will be seated

Illinicon (Diary) Tuesday, December 30th at 9:52PM EST (link)

like it or not the law appears on the side of Blago and Burris on this one. I doubt Reid and the Democrats really want to touch the racial aspects of this with a 40 foot pole. Come Janurary when the national focus will be off Blago and onto the first 100 days of Obama adminastration, the NFL playoffs, and adwards season. They will take the bullet and accept Burris as no outside of Illinois will view this as Page 1 news and if he is going to get the seat sooner or later its most feasible to just do it now, then drag it out a make a really bad sitution worse. Also how bad will it look if they challange Burris’s appointment and Franken’s election?

My Potus shortlist

declared candidates:

1. Tim Pawlenty
2. Herman Cain
3. Gary Johnson
4. Rick Santorum

among declared and rumored candidates:

1. Rick Perry
2. Tim Pawlenty
3. Rudy Giuilani
4. Herman Cain

Agreed

Bill S (Diary) Tuesday, December 30th at 10:02PM EST (link)

There will be much bloviating from the Dems, and nothing will happen except that the Senate will have no choice but to seat Burris as a Senator.

Interestingly, the GOP will probably do nothing but make some sort of public statement and keep the whole thing at arm’s length. The Dems are doing a fine job of making themselves look stupid. We don’t have to do a thing except kick back the Barcalounger and watch.

“It’s such a fine line between stupid, and clever.” – David St. Hubbins

 
 

Great News

Joe S. (Diary) Tuesday, December 30th at 10:54PM EST (link)

This is great for the Republicans, and the citizens of Illinois (of which I am one.)
Blago did this to stick it to Daley, Madigan, Quinn, and the rest of that bunch. At one point during the press conference he even directly referenced the Democratic leaders opposition to a special election, attacking them for not letting the people chose. This bold defiance is a sign that he is willing, and perhaps even wants to, rat out the rest of the Dems out of anger. If Blago talks, he could bring down the house of cards Daley has built.

Also, I don’t really think Obama can do anything. Blago obviously isn’t listening to him. Why would Reid? Reid and Pelosi control the congress and aren’t going to answer to Obama (http://www.politico.com/news/stories/1208/16728.html.)

Obama’s only power is based in (1) the overwhelming support from far left organizations which dominate the Democratic Party and (2) public approval. However, the first will quickly weaken, although not completely erode, as he tries to move center to win re-election. These organizations will move towards Reid and Pelosi as they realize Obama is not willing to take the steps they want, while the other pair presses forward with the reforms the radicals want. The latter will fall prey to a weak economy and unmeetable expectations within the first year.

In the end, Reid will have to seat Burris due to racial pressure. The African-American vote was crucial for the Democrats this election cycle (and will be in 2012) and they cannot afford to anger black leaders.

 

Heard on radio: Constitution requires a special election for Senate seats

GregInFla (Diary) Wednesday, December 31st at 12:50AM EST (link)

Can anyone confirm this? I think I heard this on Hannity’s show (with Curtis sitting in). Senate has never enforced it. I also heard tonite that Illinois Dems nixed the special election because they thought GOP could win. Is that an official reason?


– A true evolutionist would let endangered species die off. Think about it.
– The sign outside the courthouse said no signs allowed. So I took it down.
– Atlas Shrugged is now on the non-fiction aisle at Amazon.

Nope

zuiko (Diary) Wednesday, December 31st at 12:51AM EST (link)

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

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.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Underlying most arguments against the free market is a lack of belief in freedom itself. – Milton Friedman

 

No and Yes

Joe S. (Diary) Wednesday, December 31st at 8:31AM EST (link)

It isn’t their “official” reason (in public) because saying anything remotely like that would, of course, be political suicide. Mostly they argue that Illinois cannot afford the $50 million cost of a special election and that it would take too long because primaries would have to be held as well.

In reality, it is. Mark Kirk, the US Congressman from the 10th District in Illinois, is a very big threat to them. During an interview on one of the two main conservative stations in Chicagoland, WLS, on December 10, he said that he would run if a special election was called. Note that Kirk is definitely a liberal Republican as he featured the endorsement of planned parenthood on his brochures and that of JACPAC on his campaign website.

In his five elections Kirk has run up margins as high as 38%. This year he increased his margin from by 4% (to 10%) despite the fact that his district includes most of northern Cook County (where Obama won by 53%) and southern and eastern Lake County (where Obama won by 13%.) Kirk also managed to do this despite being opposed by a, for this district, relatively strong challenger (Dan Seals) and being targeted by national Democrats as a vulnerable seat. Kirk would minimize gains for the Democrats in the Northern suburbs (which is where his congressional district is) and the city. He is a great fundraiser (over 4.6 million this cycle.) He is a very clean cut guy and has a solid approval rating. Kirk, who was rumored a couple of months ago to be considering a 2010 Gubernatorial bid, definitely strikes fear into the hearts of many Illinois Democrats who want to wait and see if Blago can blow over before hurting them in any elections, especially such an important one.

 
 

It's Outrageous That The Supreme Court Even Claims a Say in Internal Senate Matters

IJB Wednesday, December 31st at 1:14AM EST (link)

Whatever happened to Separation of Powers?!

It seems clear to me that the Supreme Court has *zero* jurisdiction over whether or how Senators chose to seat one of their own. It is clear from the Constitution that the Senate has exclusive control on the seating of their own members.

If the SCOTUS actually has the audacity to try and tell the Senate that they have to seat Burris, I hope Reid & co. tell SCOTUS to stick it, that they have no jurisdiction over Senate matters, and that they simply intend to ignore the ruling.

Frankly, the Bush Administration should done something similar in Hamdan.

It’s time for the other two branches of the government to knee-cap this continual out of control overreaching by the Supreme Court.

knee capping

bobojake (Diary) Wednesday, December 31st at 1:26AM EST (link)

could it be knee capping Illinois politics led to the whole can of worms

 

The Supreme Court's duty is to interpret the constitution

Jeff Walden (Diary) Wednesday, December 31st at 2:28AM EST (link)

Interpreting the constitution to determine the precise procedure in this case is very much part of their domain.

As for the actual constitutional questions, I first recommend reading the cited opinion of Powell v. McCormack (or at least the syllabus). Second, consider the precedent that “It is clear from the Constitution that the Senate has exclusive control on the seating of their own members” sets: it makes the Senate sovereign to the people in determining admittance (tho notably not expulsion) to its own membership. Under that precedent, the Senate could arguably bar Coleman if he eventually triumphs in MN (and MN agrees), simply because they don’t trust how MN tallied the vote.

I presume most of this sentiment is an outgrowth of the underlying reason to want to bar Blagojevich’s appointment on the basis that Blagojevich is an unapologetic scumbag. Nevertheless, that does not change the general rule that bad cases make bad law, and I think the precedent that would set would very much be bad law. Just let Blagojevich keep digging here, Republicans are sideline winners (save for a Democrat getting the seat, but this is IL, there really isn’t much hope anyway) anyway, plus it’s great “pass the popcorn” moments as I’m sure Moe Lane would agree. :-)

I Totally Disagree

IJB Wednesday, December 31st at 10:46AM EST (link)

The Constitution was set-up with Separation of Powers in mind. The SCOTUS does not have the right to impose its whims on the other two branches of governments internal workings. The Constitution clearly gives the Senate that right – it’s right there in the text.

Second, consider the precedent that “It is clear from the Constitution that the Senate has exclusive control on the seating of their own members” sets: it makes the Senate sovereign to the people in determining admittance (tho notably not expulsion) to its own membership. Under that precedent, the Senate could arguably bar Coleman if he eventually triumphs in MN (and MN agrees), simply because they don’t trust how MN tallied the vote.

The Senate is clearly empowered to do that, if they so choose.

So is the House, which is exactly what they did in 1984 in McCloskey vs. McIntyre.

If the Senate or the House abuse their internal powers of seating members, it’s up to the people to correct that, not the SCOTUS.

The Senate is not bound by stare decisis. Reid should tell the SCOTUS to shove it if they try and interfere in this.

 
 
 

The irony

SunDogII Wednesday, December 31st at 8:17AM EST (link)

would be sweet if the democrats were the ones to slap the Supreme Court’s claim of constitutional adjudication down. The Congress and the President both have the right and duty to decide constitutional issues, and the Congress does have the right to refuse to seat a person. At some point, some congress will have to re-assert its power and responsibility; for once we should support Reid.