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Blocking Burris

December 30, 2008 - by Donny Shaw

Been reading the major precedent opinion, Powell vs McCormick, wherein SCOTUS ruled that Congress can only deny the seating of a member-elect if they don’t meet the criteria laid out in the Constitution. After going through several conflicting historical instances in which the courts did not intervene, we reach the conclusion:

>Had the intent of the Framers emerged from these materials with less clarity, we would nevertheless have been compelled to resolve any ambiguity in favor of a narrow construction of the scope of Congress’ power to exclude members-elect. A fundamental principle of our representative democracy is, in Hamilton’s words, ‘that the people should choose whom they please to govern them.’ 2 Elliot’s Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. In apparent agreement with this basic philosophy, the Convention adopted his suggestion limiting the power to expel. To allow essentially that same power to be exercised under the guise of judging qualifications, would be to ignore Madison’s warning, borne out in the Wilkes case and some of Congress’ own post-Civil War exclusion cases, against ‘vesting an improper & dangerous power in the Legislature.’ 2 Farrand 249. Moreover, it would effectively nullify the Convention’s decision to require a two-thirds vote for expulsion. Unquestionably, Congress has an interest in preserving its institutional integrity, but in most cases that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.
>For these reasons, we have concluded that Art. I, ยง 5, is at most a ‘textually demonstrable commitment’ to Congress to judge only the qualifications expressly set forth in the Constitution. Therefore, the ‘textual commitment’ formulation of the political question doctrine does not bar federal courts from adjudicating petitioners’ claims.

Here are the qualifications expressly set forth in the Constitution:

>No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.

So, it sounds like a “no” to me; the Senate doesn’t have the authority to block Burris outright.

But there seem to be two other options for keeping Burris out of the Senate: filibuster the reading of his certificate of appointment, or let the oath of office be administered and then hold a vote to expel him by a 2/3rds majority. Either one is going to be kind of uncomfortable. The former could tie up the Senate for weeks and delay work on the big stimulus package, while the later carries the risk of failure. Will 2/3rds of the Senate actually be willing to go down on the record with a vote to expel the only black member?

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