A Discussion of Congressional Legal Issues
Illinois Secretary of State Jesse White explains the legalities of his refusal to sign the certification of Roland Burris’s appointment to the U.S. Senate:
“My signature is not necessarily required for the Senate to place the gentleman in the seat,” White said Tuesday during a radio interview. “It carries a lot of weight, but my signature is mostly ceremonial, rather than it being a point of law.”
I trust that clears everything up.
The dispute over the appointment of Roland Burris has drawn commentary from a number of legal scholars. Akil Amar, Josh Chafetz and Larry Tribe have expressed the view that the Senate may properly refuse to seat him, as have, somewhat more tentatively, Jack Balkin and Mark Tushnet. Eugene Volokh, Brian Kalt, Michael Rappaport, Sandy Levinson, Erwin Chemerinsky and Don Wolfensberger take the opposite view, with Ann Althouse and Walter Dellinger also expressing skepticism about the Senate’s authority to exclude Burris. Rick Hasen believes that the right way to get rid of Burris would be to seat him and then expel with a two-thirds vote, while Bob Bauer argues that the Senate could preemptively expel Burris (presumably with a two-thirds vote).
Here is a brief summary of the issues.
Does the Senate have authority to judge appointments? No commentator seems to doubt that the Senate has some authority to judge appointments. This may simply reflect the fact that the Senate by necessity must make decisions about who is entitled to a seat. The Senate has to determine whether state law empowers the Governor to make a temporary appointment (in
Can Burris be rejected on the grounds that he lacks a proper certificate of appointment? In order to ensure that the claimant has authentic credentials, the Senate (and federal law, see 2 U.S.C. §1b) requires that the certificate of appointment (or election) be signed by both the Governor and the Secretary of State. Although the Secretary of State has refused to sign Burris’s certificate, even the supporters of Senate exclusion doubt that this is a valid basis for refusing to seat him. Thus, Professor Tribe notes “that the
Professors Levinson and Tushnet have some follow-up debate on this point, with Tushnet making the interesting (but I think quite mistaken) suggestion that the Secretary here might be considered part of executive appointing authority under the 17th Amendment.
Is the Senate’s authority express or implied? The Constitution provides that each House “shall be the Judge of the Elections, Returns and Qualifications of its own Members.” It is conceded that Burris has the constitutional “qualifications” to be a Senator (age, citizenship and residency) and the Supreme Court held, in Powell v. McCormick, 395 U.S. 486 (1969), that Congress cannot refuse to seat a member for failure to meet qualifications other than those specified in the Constitution. Some commentators construe the Senate’s refusal to seat Burris as an impermissible attempt to add qualifications, but the Senate would not attempt to justify its action on that basis. Instead, the Senate would have to proceed either under the express powers to judge elections and returns, or under an implied power to judge appointments.
My initial view was that the Senate has no express power to judge appointments, but I am now leaning slightly the other way. Professors Amar and Chafetz argue that the power to judge returns encompasses judging of appointments, on the theory that the “report” of the appointment would constitute a “return” within the meaning of the Constitution (Tushnet makes a similar point). Although more historical evidence is needed to substantiate this argument, it is not implausible. Alternatively, as Amar and Chafetz suggest, the election-judging power may be applicable here. One reason for thinking that an appointed Senator is nonetheless “elected” within the meaning of the Constitution is that the Qualifications Clause requires that a Senator “when elected, be an Inhabitant of that State.” Since it seems unlikely that this requirement was intended to be inapplicable to appointed Senators, one may infer that the term “election” embraces appointed Senators as well as those chosen by the people (or, as in the original Constitution, the state legislatures).
Whether the power is express or implied is not necessarily determinative of how Burris’s case should be treated. However, if the power is expressly conveyed by the Constitution, one might tend to give the Senate a broader discretion to decide whether to exclude an appointee. In addition, if the power is “textually committed” to the Senate, the courts are more likely to view its exercise as a political question (as discussed later).
How far does the power to judge appointments extend? This question lies at the heart of what divides the commentators. Every commentator appears to agree that Burris could be excluded if his appointment were procured by bribery (or other corrupt means such as fraud, blackmail, or extortion). However, Amar, Chafetz and Tribe would go further and say that the appointment can be set aside because it was “tainted” by Blagojevich’s initial (alleged) attempt to sell the Senate seat, even though Burris’s appointment itself was not procured by bribery. Amar and Chafetz note that Burris may only have been chosen because Blagojevich refused to consider other candidates who would not go along with his “pay to play” scheme or who were important witnesses in the criminal case against him. Tribe would go even further; he suggests that the mere appearance of impropriety resulting from the corruption scandal is enough to justify the Senate in setting the appointment aside.
On the other side, Professor Kalt argues that the Amar/Chafetz thesis has no logical stopping point. If the original corruption taints future appointments by Blagojevich, wouldn’t it taint a future appointment by Blagojevich’s successor (who would no doubt be less likely to consider anyone involved, even tangentially, in the scandal)? This problem, of course, is even more acute if one accepts Tribe’s appearance of impropriety standard.
Similarly, Dean Chemerinsky raises a “slippery slope” concern with rejecting Burris for reasons other than actual corruption. He argues that it set be a “dangerous precedent” and could “open the door to the Senate or the House overturning the will of the people and excluding representatives under one or another pretext.” Or as Levinson puts it, “I don’t see how one can mount a good-faith argument against seating Burris unless one is willing to open each and every gubernatorial appointment to some kind of ‘good-government’ scrutiny.”
It seems to me that the most fundamental problem with the attempt to exclude Burris is that it is based on a blanket refusal to accept anyone that Blagojevich appoints. Indeed, Tribe explicitly endorses that as a virtue of the Senate’s position, namely that it is entirely unrelated to the identity of the appointee. Whatever the outer boundary of the Senate’s authority to judge appointments, surely it must be crossed if the Senate uses it to strip the Governor of his appointment power altogether. It would be as if the Senate declared that the State of
What quantum of evidence is needed to justify conducting an investigation before seating Burris? If the Senate believes that Burris’s appointment is potentially illegitimate, it has the option of seating him without prejudice to its right to determine that he is not entitled to the seat, or to decline to seat him pending an investigation by the Committee on Rules and Administration. While none of the commentators propose a specific evidentiary standard that would need to be met in order to justify an investigation prior to seating, presumably there would have to be something more than mere suspicion. Otherwise, the Senate could use its power to refuse to seat elected or appointed Senators for arbitrary or improper reasons.
One might argue that Blagojevich’s previously corrupt conduct is enough to warrant an investigation of whether Burris’s appointment was procured in a corrupt manner. This argument, however, is weak under the circumstances. Given that Burris was not appointed (or, apparently, even considered for appointment) until after Blagojevich was arrested for allegedly trying to sell the Senate seat to others, it seems highly unlikely that Blagojevich was bribed to appoint Burris (Blagojevich probably counted himself lucky that he didn’t have to pay Burris to accept the appointment). As Levinson points out, “it’s clear that [Blagojevich’s initial attempt to sell the seat] didn’t work, and that he, clever politician that he is, reached out to strengthen himself with a key constituency and, an added bonus, to discomfort many of his erstwhile Democratic Party allies.”
To be clear, I have no doubt that the Senate may conduct an investigation regarding the circumstances of Burris’s appointment, but it is questionable whether it has the constitutional authority to prevent him from taking his seat while the investigation is pending.
Would a challenge to the Senate’s refusal to seat Burris be justiciable? Regardless of whether the Senate has the constitutional authority to refuse to seat Burris, a court might conclude that the political question doctrine precludes it from reviewing that decision. Although Powell held the political question doctrine inapplicable to an attempt to exclude a Member for lacking qualifications other than those specified in the Constitution, Professor Dellinger states that the decision “leave[s] open the possibility that a Congressional decision finding that a member was not properly elected—in this case, appointed” would be immune from judicial review.
Indeed, it is generally believed that the exercise of the election-judging power would be, at least in most circumstances, non-justiciable. As then-Judge Scalia wrote in the DC Circuit case of Morgan v. United States, 801 F.2d 445 (D.C. Cir. 1986), involving an election contest from Indiana, “[i]t is difficult to imagine a clearer case of “textually demonstrable constitutional commitment” of an issue to another branch of government to the exclusion of the courts . . . than the language of Article I, section 5, clause 1 that ‘[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members.’”
Whether or not the decision to seat Burris would be non-justiciable depends, in part, whether the power to judge appointments inheres in the election-judging power, or whether it is merely an implied power. If the former, the decision not to seat Burris would more likely be viewed by the courts as beyond their review. However, even in that instance, the courts might review the Senate’s decision if they construe it not as an attempt to judge a particular appointment, but an attempt to strip the Governor of the appointment power altogether.
All in all, the question of justiciability is a close one (as I think most, if not all, of the commentators agree). However, as Professor Rappaport points out, “one must distinguish between who gets to decide and what the Constitution requires of the decisionmaker.” In other words, whether the Senate could get away with refusing to seat Burris is a different question that whether it has the constitutional authority to do so. In fact, Dellinger notes that the possible absence of judicial review is reason for the Senate to “take more care, not less” regarding its decision. As he puts it, the “Senate’s power to decide is only the power to decide correctly under the law, not the power to decide however the majority of the Senate prefers to decide.”
May the Senate use its powers under the Disciplinary Clause to expel Burris? The Constitution provides that each House may “punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” One might argue that this provision limits punishment to “disorderly Behaviour,” but allows expulsion for any reason whatsoever. However, while both the House and the Senate have construed the scope of their disciplinary powers broadly, neither has suggested that it has the right to expel a Member without some sort of misconduct by that Member. Thus, I believe that it would be problematic for the Senate to expel Burris unless it found some sort of misconduct on his part (although one could imagine that such misconduct might consist of Burris’s acceptance of the appointment with knowledge of improper motivations on the part of Blagojevich). Nonetheless, Professor Hasen is almost certainly correct that if the Senate were to expel Burris (which would require a two-thirds vote), such action would be judicially unreviewable.
By letter dated January 2, 2009 (although apparently released earlier in the week), Rahm Emanuel informed Illinois Governor Rod Blagojevich that “I am writing to resign my position as United States Representative from the Fifth Congressional District of Illinois, effective January 2, 2009.”
What is odd about this letter is that January 2 was the last full day of Emanuel’s term as Representative in the 110th Congress, which expired at noon on January 3. As I pointed out previously, there was little reason for Emanuel to resign his seat in the 110th Congress since that seat could not be filled by a special election in the remaining time. It is hard to understand why Emanuel would resign his seat one day before his term expired.
Even more surprising, the letter does not explicitly state that Emanuel is resigning his seat in the 111th Congress. Resigning his position as Representative on January 2 would not, at least read literally, have any effect on Emanuel’s status in the 111th Congress. The letter speaks of resigning only one “position” and, on January 2, his “position” was that of United States Representative in the 110th Congress. With regard to the 111th Congress, Emanuel was not a “Representative” or a “Member,” but a “Member-elect.”
Moreover, had Emanuel intended to refer to his seat in the 111th Congress, one would expect him to have used a less ambiguous term than “resignation.” Technically, it is arguable that a Member-elect does not “resign” at all, but simply declines to take the oath or accept the seat. See J. Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L. J. 177, 188, 216-18 (2008) (discussing the distinction). For example, when Newt Gingrich decided in November 1998 that he would leave Congress at the end of the 105th Congress, he informed the Governor of Georgia that he had “withdrawn” and would “not take the seat of congressman for the Sixth District of Georgia for the 106th Congress.”
Emanuel clearly expects that everyone will understand his letter to be statement of intent not to take his seat in the 111th Congress. Perhaps then his letter merely reflects sloppy drafting. Or could he have deliberately set out to create an ambiguity with regard to his status in the 111th Congress?
On Friday, December 19, 2008, the President signed into law S.J. Res. 46, which provides “[t]he compensation and other emoluments attached to the Secretary of State shall be those in effect January 1, 2007, notwithstanding any increase in such compensation or emoluments after that date under any provision of law, or provision which has the force and effect of law, that is enacted or becomes effective during the period beginning at noon of January 3, 2007 and ending at noon of January 3, 2013.”
This law, of course, is the so-called “Saxbe fix,” which in this case is intended to obviate objections to the constitutionality of appointing Senator Hillary Clinton as Secretary of State. Because the salary of the Secretary of State was raised in January 2008 (by approximately $4,700 to $191,300) and
It should be noted that the January 2008 pay raise resulted from a procedure established by a statute, 5 U.S.C. § 5303, enacted before Senator Clinton was in Congress. Under this law, the salaries of federal employees, including the Secretary of State, are increased annually according to a cost of living formula unless the President certifies that such an increase would be inappropriate. The Executive Order issued pursuant to this statute did not make such a certification so the pay raise went into effect.
Professor Tribe, among others, argues that the 2008 pay increase does not implicate the spirit of the Emoluments Clause because “the salary increase at issue here was created not by any enactment for which Senator Clinton voted or on which she had any opportunity to vote.” Since
There are several problems with this argument. First, the Emoluments Clause is a prophylactic rule that applies regardless of whether the Member voted on, or even voted against, the pay raise for the office in question. Whether it was to prevent clever forms of self-dealing or corruption or whether it was to incentivize Members to limit pay increases, the Framers wanted the disability to apply regardless of whether the Member had any responsibility for the pay raise in question.
Second, it may be an overstatement to say that the 110th Congress bore no responsibility for the pay raise since Congress was responsible for approving the budget and appropriating the funds for the pay increase. Third, if the use of automatic pay increases were recognized as a means of circumventing the Emoluments Clause, this would give Members an incentive to adopt such pay increases, which would seem to be the opposite of what the Clause was attempting to accomplish.
Finally, the text of the Emoluments Clause simply requires that there have been an increase in emoluments during the relevant time and does not specify how the increase must come about. Thus, even Professor Tribe apparently acknowledges that the Clause applies to Senator Clinton, If this is so, it is difficult to see how the Saxbe Fix becomes any more effective merely because of the automatic nature of the pay increase.
Because, as I previously argued, the Saxbe Fix does not effectively remediate the violation of the Emoluments Clause, Hillary Clinton is in fact unconstitutional. (see Michael Stokes Paulson, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907 (1994) and this post on the Volokh Conspiracy). So, in fact, is Senator Ken Salazar, who will be nominated as Secretary of the Interior, and possibly Representative Hilda Solis, who will be nominated as Secretary of Labor (although in the latter case this depends on whether there is another pay increase which occurs while she is serving in the 111th Congress, which began earlier today).
As Professor Tribe notes, it may very well be that no plaintiff will ever have standing to contest in court the constitutionality of any of these appointments. However, Tribe asserts that President-elect Obama would not violate the Emoluments Clause and his constitutional oath merely because “the institutional limits of the Article III Judicial Branch would let him get away with a violation of that oath.” Tribe contends that this would “hardly satisfy the constitutional conscience of a chief executive as dedicated to the to the Constitution as President-elect Obama, who reveres the Constitution as something more than the sum total of judicially enforceable restraints on government power.”
So President-elect Obama really cares about the Constitution, unlike some presidents that Tribe is too diplomatic to mention, and will comply with its restraints even when it is inconvenient to do so. Of course, in this case it turns out, somewhat conveniently, that President-elect Obama interprets the Constitution to allow him to do what he wants to do, but I am sure that is just a happy coincidence.
This article from ABC News highlights an issue I noted several weeks ago when it questions whether the Senate actually has the power to refuse to seat Roland Burris as a Senator from
Conceivably, Burris could challenge the Senate’s refusal to seat him through a lawsuit against the Senate officer responsible for paying him (as was done in Powell v. McCormack). This case would be distinguishable from Powell because the latter involved the power to judge a Member’s qualifications, whereas the Burris case would involve the power to judge a Member’s “election.” But it is far from clear that the use of the election-judging power to exclude an appointee would be exempt from judicial review, particularly in circumstances where there was no prima facie evidence that the appointment was invalid.
The Hill had a report yesterday regarding the “two hats” worn by Rahm Emanuel, namely (1) his presidential transition job in which he “is calling the shots for what will soon be the Obama White House” and (2) his job as a Member of Congress. The first job is unpaid, although is evidently occupies most or all of his time; the second job is paid, although he is no longer performing it.
The story quotes an Emanuel spokeswoman as saying that the timing of his resignation has not been decided. According to a source in another leadership office, “the understanding is that Emanuel has delayed resigning his House seat in order to allow his staff to look for jobs and keep getting salary and benefits.”
This is a peculiar explanation. Under House rules and federal law, once a Representative resigns his seat, the Clerk of the House supervises the staff and manages the vacant office, and the staff remains on the payroll at the same salary (see 2 U.S.C. §92b). Thus, it is not like Emanuel’s resignation would leave the staff immediately unemployed.
It is true that once a special election occurs, many or all of the Emanuel staffers may be out of a job. But even if Emanuel had resigned immediately, it is unlikely that a special election would have been held until early 2009. For example, when Speaker Hastert (who was the Representative from
In short, it seems unlikely that Emanuel’s resignation timing is being driven by his staff’s need to find other employment.
The Emoluments Clause of the Constitution, art. I, § 6, cl. 2, provides that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office . . . the Emoluments whereof shall have been encreased during such time.” In plain English, this means that if Senator X is elected in 2006 for a term to run from 2007-2013, and the salary or benefits for a federal office are increased during that term (say in 2008), he or she cannot thereafter (say in 2009) be appointed to that office until the expiration of the term (i.e., in January 2013).
From time to time, however, it transpires that a President would like to appoint to federal office a Senator or Representative who, on the face of it, would appear to be disqualified from appointment under the Emoluments Clause. Naturally, in such situations the President, having taken a solemn oath to protect and defend the Constitution, will regretfully select another well-qualified nominee for the position.
Just kidding. What most presidents have done in that situation is to employ something called the “Saxbe fix,” so-called after Senator William Saxbe, who was appointed by President Nixon as Attorney General in 1973. The Saxbe fix is legislation that repeals the pay raise (or other benefit increase) for the office in question so that the appointee will receive the same emoluments as the office provided at the beginning of his or her congressional term. This roll-back provision, it is argued, satisfies the literal requirement of the Emoluments Clause because the emoluments are now the same as they were at the beginning of the time for which the appointee was elected and thus have not, in a sense, increased.
Certainly there are contexts in which this construction of the term “increased” would be perfectly reasonable. For example, if one were asked if the stock of IBM increased today, one would reasonably construe the question to mean whether the closing price was higher than the opening price, rather than whether the price rose at any point during the day (to which the answer would certainly be yes).
Yet there are other contexts in which this construction seems unreasonable. For example, Article II (section 1, clause 7) of the Constitution provides that the President shall receive “a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected.” Surely this provision would be violated if the President’s compensation were both increased and decreased during his term, even though the compensation rate at the beginning and end were identical.
One might say that the presidential compensation clause is ambiguous but must be read in light of its purpose (presumably to prevent manipulation of the president’s compensation for political purposes). Yet this does not seem quite right. Even without knowing the specific rationale behind the clause, it is reasonably apparent that it does not permit a series of increases and decreases that cancel each other out. For one thing, if the Framers had so intended, they could have simply provided that the compensation at the commencement of the period for which the president was elected would be identical to the compensation at the conclusion of such period. Thus, the presidential compensation clause unambiguously prohibits offsetting increases and decreases.
The Emoluments Clause presents a similar structural issue. If the Framers had intended merely to ensure that the emoluments of the executive office in question were no greater at the time of appointment than they were at the time of commencement of the appointed Member’s term, the Clause could have, for example, stated “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office . . . the Emoluments whereof shall have been encreased during such time unless said Emoluments shall subsequently have been decreased by at least an equivalent amount.”
The hypothetical language above was suggested by Professor Larry Tribe, a supporter of the Saxbe fix, who acknowledges that the absence of such an “escape clause” in the Constitution poses some difficulties for his position. Professor Tribe writes that “[s]omewhat troublesome for [supporting the constitutionality of the Saxbe fix] is the absence of any constitutional proviso for annulling what would otherwise be a violation of the Emoluments Clause by decreasing a salary hike at some later time.” In contrast, Tribe notes, the constitutional prohibition on accepting gifts or emoluments from foreign states “includes within its text [an] escape clause” allowing Congress to give its consent to the gift or prohibition. However, Tribe argues that this constitutional silence is of limited significance to the Emoluments Clause because the wording of the needed escape clause would be “singularly peculiar.”
However, if the Framers were concerned merely about the possibility that a Member might benefit (or expect to benefit) from a pay raise enacted during his congressional term, the most direct and intuitive way to address the problem would be simply to prohibit the Senator or Representative from receiving the increase. The Clause would thus read something like this: “No Senator or Representative who shall, during the Time for which he was elected, be appointed to any Civil Office . . . shall receive any encrease in Emoluments which have happened during such Time.”
There is nothing “peculiar” about such a direct prohibition on receipt of a financial benefit. Indeed, when the Framers wanted to place direct limitations on compensation or emoluments, they were well aware of how to do so. The presidential compensation clause is one example. Another is the 27th Amendment (which, while not ratified until 1992, was proposed in 1789). This amendment provides that “[n]o law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” The fact that the Emoluments Clause is structured as a disability or disqualification to office, rather than simply a limitation on the emoluments that a Member can receive, hardly seems likely to be the result of mere inadvertence
Of course, no one can say for sure whether the Framers considered or even thought of the idea of structuring the Emoluments Clause in a way that would explicitly permit a Member to be appointed despite a prior increase in emoluments. One can say with a fair degree of certainty, however, that such an alternative structure would have been vigorously objected to by at least a significant number of those who debated, drafted and ratified the Constitution.
The initial proposal at the Constitutional Convention was to prohibit Members of Congress from being appointed to any civil offices during the time for which they were elected (and for a one-year period thereafter). This provision was supported by anti-Federalists such as George Mason and Elbridge Gerry on the theory that the prospect of such appointments would cause Members of Congress to become more oriented toward expanding the scope and power of the federal government, and less toward protecting the interests of their states. These delegates were particularly, but not exclusively, concerned with the possibility that the executive would use the power of appointment to corrupt Members of Congress.
Other delegates, such as James Madison, believed that the costs of a total prohibition on appointment of Members outweighed the benefits.
As John F. O’Connor demonstrates in his article, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, the fact that the Emoluments Clause is a disability to appointment, rather than a mere prohibition on increased emoluments, better serves the Anti-Federalist purpose of minimizing the growth of government. This is because a disability tends to encourage Members of Congress (to the extent that they hope to be appointed to federal offices) to vote against any pay raise, while a mere prohibition on receiving increased emoluments does not. The structure of the Clause as a disability, rather than a limitation on compensation, therefore must be viewed as integral to the compromise that was struck, rather than as simple inadvertence or peculiarity or phrasing.
For this reason the Emoluments Clause cannot be circumvented by means of the Saxbe fix. While in hindsight it may be apparent that the Clause has not been an effective tool for limiting the size and cost of the federal government, the appropriate “fix” for this problem is to repeal the Clause (or, better yet, to substitute more effective constitutional limitations on the growth of government). It is not justification for ignoring the Clause’s express dictates.
ABC News asks “Why Hasn’t Joe Biden Resigned His Senate Seat?” Perhaps the answer is that Senator Biden, who is after all a law professor in his spare time, is familiar with this recent work of legal scholarship concluding that one can be President (or Vice-President) at the same time one holds a seat in the Senate (or House). Specifically, Seth Barrett Tillman argues that the Incompatible Offices Clause (U.S. Const., art. I, § 7, cl. 2), which provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office,” is inapplicable to the President or Vice-President because they do not hold offices “under the United States.” Although Tillman’s argument is focused on the presidency, it would seem to allow Biden to remain a Senator while serving as Vice-President.
There are a number of very strong arguments against Tillman’s theory, of which unbroken historical practice is just one. Professor Steven Calabresi lays out many of these arguments in a recent debate with Tillman. One particular problem for a Vice President/Senator would be Article I, § 3, cl. 4, which provides that the “Vice President shall be President of the Senate, but shall have no Vote, unless they be equally divided.” Does this mean that Vice President Biden would be unable to vote in his capacity as Senator Biden?
Nonetheless, perhaps Senator Biden wants to chew on this awhile before making a final decision on whether to give up his Senate seat. After all, Senator Obama rushed into his resignation and look how much trouble that caused . . . .
While most of America</place /></country-region /> is worrying about losing a job, there is at least one person who has to worry about having too many. That would be Rahm Emanuel, who currently holds at least three different titles and responsibilities. He is a Member of the 110th Congress, representing the 5th Congressional District of Illinois. He is a Member-Elect of the 111th Congress, having been re-elected in November to that seat. He is President-elect Obama’s designee for White House Chief of Staff, a position he will formally assume sometime after January 20, 2009. In the meantime, Emanuel presumably has significant responsibilities for the presidential transition.
Emanuel cannot serve as WH Chief of Staff and be a Member of Congress at the same time due to the Incompatible Offices Clause of the Constitution, which provides that “no Person holding any Office under the United States</place /></country-region />, shall be a Member of either House during his Continuance in Office.” This clause was designed, according to Federalist No. 76, to protect against “the danger of executive influence upon the legislative body.”
To comply with the Incompatible Offices Clause, Emanuel will have to resign his seat in Congress before assuming the office of COS</place />. For purposes of this discussion, we will assume that there is nothing constitutionally, legally or ethically problematic with regard to the de facto authority that Emanuel exercises in the presidential transition (while at the same time serving in Congress). On that assumption, there is no particular obligation on Emanuel’s part to resign prior to January 20. Instead, his decision on when to resign is presumably based on political and personal factors.
Emanuel’s replacement will be chosen in accordance with the House Vacancies Clause of the Constitution, which provides that “[w]hen vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.” Unlike Senate vacancies, which may filled temporarily by the Governor’s appointment, House vacancies can only be filled by special election. Article 25-7 of the Illinois Election Code provides that “[w]hen any vacancy shall occur in the office of representative in congress from this state more than 180 days before the next general election, the Governor shall issue a writ of election within 5 days after the occurrence of that vacancy to the county clerks of the several counties in the district where the vacancy exists, appointing a day within 115 days to hold a special election to fill such vacancy.”
Emanuel has not and probably will not resign his seat in the 110th Congress. This is understandable because it would have been virtually impossible for Illinois</place /></state /> to hold a special election to fill his seat within the time remaining in the 110th Congress. Retaining his seat, in addition to allowing him to collect his congressional salary and use his congressional office and staff, permits Emanuel to continue to represent the people of his district during the remainder of the Congress. Given the extended lame duck session and the significant legislative issues that are still before the Congress, this decision makes perfect sense.
On the other hand, it is more puzzling as to why Emanuel has not yet resigned his seat in the 111th Congress. House precedents allow a Member-elect to resign his seat prior to start of the Congress for which he was elected. Thus, Emanuel could have resigned immediately upon deciding to take the COS</place /> position. He also could have resigned effective at a future date, e.g., January 20, 2009. Whether or not to treat these resignations as creating an immediate vacancy for purposes of the Illinois election code would have been an issue of Illinois law, and would have been a question for Governor Blagojevich to resolve. It is difficult to see, however, why Emanuel would delay his resignation unless he had some reason for postponing or, alternatively, for retaining control over the date of the special election.
Of course, this calculus changed when Governor Blagojevich was charged by federal authorities with various felonies, including allegedly attempting to sell Illinois</place /></state />’s vacant Senate seat. Now Emanuel presumably does not want the Governor to be issuing a writ of election for his seat if it can be avoided. Apart from the poor atmospherics of having the Governor involved in filling a congressional vacancy, Emanuel may be concerned that the Governor could manipulate the process by, for example, declaring the special election within an unreasonably short time.
As long as Blagojevich remains Governor, Emanuel has a conundrum. He could take the oath of office for the 111th Congress on January 6, and hope that Blagojevich is removed from the Governorship by January 20. Alternatively, he could not take the oath of office on January 6, but argue that the House should not consider the seat to be vacant due to the extraordinary circumstances presented. (He could then act as COS</place /> and yet continue to delay the special election indefinitely). This would be a somewhat far-fetched position, though no more so than the Illinois Attorney General’s attempt to have the courts declare the Governor incapable of carrying out his duties because of his legal troubles.
If, on the other hand, Blagojevich resigns in the next few days, one would expect that Emanuel would resign from the 111th Congress immediately thereafter, so as to allow the new Governor to call a special election and to ensure that the people of the 5th Congressional District of Illinois are without representation for as little time as possible.
Today’s events in
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
Acting pursuant to this authority, the Illinois legislature has provided that “[w]hen a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.”
Thus, when Barack Obama resigned his Senate seat in November (having decided to pursue other opportunities), the Governor of Illinois was empowered to make a temporary appointment until the general election of 2010. Unfortunately, it appears that Governor Blagojevich may have decided to sell the vacant seat to the highest bidder, something frowned upon by Patrick Fitzgerald, U.S. Attorney for the Northern District of Illinois and notorious goody two-shoes.
Anyway, the
On the other hand, if Blagojevich were to make a temporary appointment before a new law is passed, the appointment would be valid, and it seems unlikely that anything in the new law could undo the appointment. State legislatures do not have the authority to recall or remove
The more difficult question is whether the
Finally, it should be noted that Blagojevich retains a significant amount of power with regard to any legislative attempt to amend the law. Although the Seventeenth Amendment gives the legislature power with regard to filling vacancies, it is established that this power does not displace the role that may be played by the state executive in enacting legislation. Thus, any new law must be presented to the Governor, as required by the Illinois Constitution, who may consider it for up to 60 days before deciding whether or not to veto it. In short, unless Blagojevich decides to heed calls for his resignation, this could go on for awhile.