FEIN: Seated in the Constitution

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By Bruce Fein

"Doesn't anyone know how to play this game here?"

Similarly, doesn't anyone in the Senate know or care about playing by the Constitution? It categorically prohibits the exclusion of any elected or appointed senator like Mr. Burris, Illinois Democrat, who satisfies its 30 year age, nine-year citizenship and state residency requirements.

In Powell v. McCormack (1969), the United States Supreme Court held that under Article 1, section 5, "in judging the qualifications of its members, Congress is limited to the standing qualifications [age, citizenship and residency] prescribed in the Constitution." The court made no distinction between representatives and senators, or between elected or appointed members of Congress. Speaking for the court, Chief Justice Earl Warren (whom President-elect Barack Obama admires) amplified that James Madison, father of the Constitution, and Alexander Hamilton in the Federalist Papers, were emphatic that Congress could not erect qualifications beyond the constitutional floor. Madison argued at the Constitutional Convention that it would be "an improper and dangerous power in the Legislature. The qualifications of electors and elected were fundamental articles in a Republican Gov't and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution." Hamilton echoed: "The qualifications of the persons who may choose or be chosen ... are defined and fixed in the Constitution, and are unalterable by the legislature."

The Supreme Court reaffirmed Powell in U.S. Term Limits v. Thornton (1995). There the court invalidated an Arkansas state constitutional amendment that prohibited otherwise eligible candidates for Congress from appearing on the general election ballot if the candidate had previously served three terms in the House of Representatives or two terms in the Senate. Writing for the majority, Justice John Paul Stevens explained: "Allowing individual states to adopt their own qualifications for congressional service would be inconsistent with the Framers' vision of a uniform National Legislature representing the people of the United States. If the qualifications set forth in the text of the Constitution are to be changed, that text must be amended."

The Senate leadership - both Majority Leader Harry Reid, Nevada Democrat, and Minority Leader Mitch McConnell, Kentucky Republican - are committed to flouting their constitutional obligation to seat Sen.-designate Burris. President-elect Obama, a former professor of constitutional law at the University of Chicago, concurs in their lawlessness. Political expediency is their common North Star.

Majority Leader Reid worries that Mr. Burris might be a weak candidate to retain the Senate seat for Democrats when it comes up for election in 2010. Further, Mr. Burris' loyalties will be to his unsavory benefactor, Gov. Rod R. Blagojevich, who is politically toxic to Mr. Reid and Mr. Obama. They would prefer a senator appointed by their political friend, Lt. Gov. Pat Quinn, who would succeed Mr. Blagojevich if the latter is impeached by the Illinois House and convicted by the state Senate.

A Gov. Quinn would be expected to withdraw Mr. Burris' appointment (if he had not then been seated by the U.S. Senate) in favor of a more politically reliable and electable nominee.

Minority Leader McConnell desires to exclude Mr. Burris for equally unconstitutional motives. Republicans oppose any gubernatorial appointment because only Democrats would be considered - whether by Mr. Blagojevich or Mr. Quinn. They are urging the Illinois legislature to enact a law (permitted under the 17th Amendment of the U.S. Constitution) that would fill Mr. Obama's vacated Senate seat by a special election which a Republican candidate might win.

Democrats plan to exclude Mr. Burris by enforcing a rule requiring that credentials presented by incoming senators be countersigned by both a state's governor and secretary of state. The rule, however, is unconstitutional as applied to senators from states that do not require countersignatures. The Illinois secretary, Jesse White, has asserted that he will not sign Mr. Burris' documents, but it is unclear whether Illinois law requires that endorsement or whether it may be arbitrarily withheld - questions currently before the Illinois Supreme Court.

If the countersignature strategy fails, Democrats plan to raise an objection to Mr. Burris' swearing in on the Senate floor and have his qualifications referred to the Rules Committee for up to 90 days. Democrats hope Mr. Blagojevich would have then been replaced by Mr. Quinn, who would be expected to revoke Mr. Burris' appointment.

Neither of these maneuvers to block Mr. Burris' appointment enjoys a crumb of legal constitutional standing. That Mr. Blagojevich was under a dark criminal and impeachment cloud when he elevated Mr. Burris is beside the point. President William Jefferson Clinton did not forfeit his power to appoint, sign legislation or negotiate treaties during his impeachment ordeal. And Democrats are not questioning Mr. Blagojevich's general authority to discharge his gubernatorial responsibilities until or unless he is impeached, convicted and removed from office. Mr. Burris' appointment has been made a lone exception for partisan political reasons, simpliciter.

After all, as New York politician George Washington Plunkitt of Tammany Hall put it, "What's the Constitution among friends?"

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates Inc. and author of "Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy."