- The Washington Times - Monday, January 5, 2009

Above the Law column:

Former Illinois Attorney General Roland Burris plans to present himself at the U.S. Senate chamber for a swearing-in ceremony Tuesday, but he really is walking into a constitutional quagmire.

Nobody in the Senate wants him there after he was appointed by disgraced Illinois Gov. Rod R. Blagojevich, who was arrested Dec. 9 after getting caught on tape by the FBI discussing the possibility of selling the Senate seat vacated by President-elect Barack Obama.

Even Mr. Obama criticized the idea of Mr. Burris becoming a senator, saying in a statement, “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.”

Nevertheless, Mr. Burris said last week, “I am currently the junior senator for the state of Illinois.” He said he would not create an ugly public scene if he is blocked from entering the Senate, but he gave few details about how he would pursue the seat vacated by Mr. Obama when he was elected president.

“We’re working on what the dynamics might be,” said Steve Burris, spokesman and nephew of Mr. Burris. He referred to his uncle as “Sen. Burris.” Supreme Court case law seems to favor the idea of Mr. Burris becoming a senator.

The closest similar case involved former Rep. Adam Clayton Powell Jr., a New York Democrat who was re-elected in 1968 despite allegations that he misappropriated funds from the House Education and Labor Committee for personal use and neglected his duties. In 1967, the House voted to exclude him.

Mr. Powell sued to retain his seat and won in a 1969 Supreme Court decision.

“The House is without power to exclude any member-elect who meets the Constitution’s requirements for membership,” the Supreme Court’s decision said.

The appointment of Mr. Burris seems to follow the proper procedures for becoming a senator.

The Illinois Constitution empowers the governor to appoint a replacement when a senator resigns or is unable to serve his full term.

In addition, Article 1, Section 3 of the U.S. Constitution makes anyone eligible to be a senator who is at least 30 years old, a U.S. citizen for nine years and a resident of the state they represent.

Mr. Burris is 71 years old and a lifelong Illinois resident.

The Senate leadership says Article 1, Section 5 is more authoritative in deciding who becomes a senator. It gives Congress authority to be “judge of the elections, returns and qualifications of its own members.” Regarding Mr. Burris, “We believe the Constitution gives the Senate the power to seat or not seat members of the body,” said Jim Manley, spokesman for Senate Majority Leader Harry Reid, Nevada Democrat.

When Mr. Burris shows up Tuesday, he is unlikely to carry a certificate from the Illinois Secretary of State, who must certify all state officials. Last week, Secretary of State Jesse White said he would refuse to sign a certificate for Mr. Burris.

Even that issue is mired in legal confusion. The Illinois state charter says it is the “duty” of the secretary of state “to make a register of all appointments by the governor.” A contingency plan drawn up by the Senate leadership says the Senate doorkeeper should block Mr. Burris from entering the chamber during the swearing-in ceremony Tuesday. If he persists, the U.S. Capitol Police would be called.

Members of Congress hope the Illinois legislature will replace Mr. Blagojevich soon with a new governor, who will make an appointment to the Senate free of controversy. Afterward, they plan to develop new rules for handling similar situations in the future.

“The entire issue will be referred to the Rules Committee for further review,” Mr. Manley said.

Meanwhile, with so many legal issues unresolved, no one can be certain whether Mr. Obama’s Senate seat will be filled through a pushing match or an orderly succession.

• Above the Law runs on Mondays. Call Tom Ramstack at 202/636-3180 or e-mail [email protected]

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