Can Blagojevich's Appointment Be Blocked?

Posted By Josh Goodman | December 30, 2008

Lots of people are mad that Illinois Gov. Rod Blagojevich, while under a cloud of scandal, would try to appoint Roland Burris to the U.S. Senate. But can they stop him from making the appointment?

The more I read, the more the answer appears to be no.

Illinois Secretary of State Jesse White is refusing to certify the appointment. This sounds very important and some of the analysis I've read indicates that it is very important -- that if White doesn't certify then the appointment doesn't happen.

However, one person who doesn't believe that White has the power to block the appointment is White himself. From the Chicago Tribune:

The senate statement came as Illinois Secretary of State Jesse White, an African American who is one of the state's most popular vote getters, said he would not certify Burris.

But White aides acknowledged the lack of a signature on the form is symbolic and the office doesn't believe it will have any practical impact on Blagojevich's appointment.

"We feel the governor can still take the appointment to the Senate," White spokesman David Druker said.

If that's correct, then the action would turn to the U.S. Senate, where Democrats say they will try to prevent Burris from being seated. The relevant line in the Constitution is this one: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members."

However, in Powell v. McCormack the U.S. Supreme Court clarified this authority. From NBC:

The Supreme Court ruled -- by a vote of 8 to 1 -- that the House was wrong and that Powell must be seated. The court said in deciding whether to exclude, Congress is limited to considering only whether a member meets the very minimal requirements for office set out in the Constitution.

So, if the Senate believed that Burris wasn't at least 30 years old (he's 71), they'd be able to reject him. But if they are merely unhappy that Burris received his appointment from a governor who's facing a criminal investigation, there's a good chance that they are out of luck.

Josh Goodman

Josh Goodman is a former staff writer for GOVERNING..

E-mail: mailbox@governing.com
Twitter: @governing

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