1.01.2009

The Senate's Power to Stop a Blago Appointment (Reprised)

Several weeks ago, I addressed the question of whether the U.S. Senate has the power to exclude a Senate appointee of Illinois Governor Rod Blagojevich. Few others were talking about the issue of the exclusion power at the time, from what I could discern then.

Well, following the recent Roland Burris appointment, several legal commentators have taken up the topic in earnest.

Some law prof bloggers agree with my rough assessment: given a key 1969 SCOTUS case, Powell v. McCormack, it seems the U.S. Senate does not have the power to exclude Burris. Professor Eugene Volokh agrees that Powell sets up a hurdle. Professor Brian Kalt at Concurring Opinions views the issue much as I do.

On the other side of the issue, Akhil Reed Amar and Josh Chafetz argue at Slate that excluding Burris is well within the Senate's power. They take an in-depth look at the legal and political situation, which is helpful, but I disagree with some of their presumptions about how things would likely play out.

Ann Althouse (to whom I sent my post after I made it) does her own exegesis and, while providing in-depth analysis, doesn't really take a side (in good law prof fashion), finishing with a bit of a distinction between the legal and political facets of the problem:

Amar and Chafetz make a good argument about the power to exclude but in doing so, they expose the political disaster it would be to vote to exclude.

She ultimately quotes Professor Sandy Levinson approvingly from a nice post at Balkinization discussing the legal implications of the 17th Amendment and finding the arguments of Amar/ Chafetz and other proponents of exclusion unpersuasive.

Various other figures at Balkinization discuss the issue. Mark Tushnet, in particular, looks at the Constitutional term "returns" - something I was not familiar with when I made my post.

ADDED - 8:08 p.m. 1/1/09: CNN now has the legal possible legal conundrum atop the news heap at its homepage.