Can Burris Be Blocked? (UPDATED)

It’s a possibility:

Yale’s Prof. Akhil Reed Amar and Cornell’s Prof. Josh Chafetz say it goes like this:

  1. Art. I, sec. 5 says, “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.”
  1. What’s a “Return?”

According to the Oxford English Dictionary, a “Return” in the time of the framers involved a report of an appointment made by a sheriff or other official.

  1. Powell v. McCormack said the House (and presumably the Senate as well) couldn’t impose new qualifications beyond those set forth in the Constitution — age, citizenship, residency. But it didn’t say the Senate (or House) couldn’t judge the “returns.” (There wouldn’t be any in the House, anyway, since nobody’s ever appointed to the House).
  1. If Blagojevich’s appointment documentation is a “return,” then the Senate can “judge” it. And reject it.

The problem with the Senate preventing Burris from taking office is Powell v. McCormack, which severely limits the Senate’s ability to prevent duly elected/appointed individuals from assuming office. If the Senate does exclude Burris from taking office, he’ll take it to court, use Powell as precedent, and he’ll probably win.

And even though Illinois Secretary of State Jesse White is refusing to certify Burris’ appointment, it’s legally questionable if he has the authority to defy the Governor.  If White doesn’t relent, Burris will take him to court and he’ll probably win this one, too.

Honestly, I think the best course of action would be to allow Burris to be sworn in, then immediately expel him from the Senate; that’s the option that poses the fewest legal speedbumps.

Some people are questioning why Burris should be disqualified at all.  The problem here is that Rod Blagojevich is being accused of trying to sell that Senate seat to the highest bidder; allowing him to appoint someone to the very seat he was trying to sell is unconscionable.  Plus, we know Blagojevich was trying to get something in exchange for the appointment; that raises the question, what might he have gotten out of former Attorney General Roland Burris? Blagojevich and Burris might not have cut any deal at all, but under these circunstances there’s enough doubt to cast a giant ethical shadow over Burris.

UPDATE: What Jane says:

If only [Harry Reid] had been so Johnny-on-the-spot when Bush was appointing Supreme Court Justices, ramming through telecom immunity, FISA and the Military Commissions Act, and otherwise trashing the country.

It’s ironic that the Democratic leadership stands up to Democrats better than they stand up to Republicans.  But hey, I’m an optimist–maybe this will herald a new era of accountability and leadership from Reid & co.