The Illinois Saga Just Keeps Getting Better

[Larry Gude]

...

...when you people get the news in the AM, I'll accept your apologies.

There is NO US Senate requirement that the Illinois sos do ANYTHING. Only a suggestion. This is ALL about Harry.

Ha!

 

[Tilted]

I believe the issue regarding the propriety of SOS White's actions is pretty clear - he has acted inappropriately and contrary to Illinois law.

Also, I would say that it's clear to me that the U.S. Senate's actions are quite weaselly, even if they are not unconstitutional.

However, the question of whether or not the Senate's actions are actually unconstitutional was a little less clear to me. After having given it a fair amount of thought, I've decided that I think they are. Of course, the right to answer that question with certainty rests only with the federal court system, and in particular, with the Supreme Court. Unless and until they give a specific answer, there really is no precisely correct answer.

My reasons for concluding that the Senate's actions are unconstitutional are two-fold. One of those reasons has to do with SCOTUS' interpretation (in Powell v McCormack) of what rights Congress has to judge the qualifications of would be Congresspersons. Frankly, that argument is not strong enough or clear enough for me to have a definitve opinion based on it; so, I won't bother with it.

The second reason, I believe, is relatively clear. The Constitution gives state legislatures the right to enpower their executive to appoint Senators to fill vacant Senate seats. That is a right that the Constitution reserves to the states - the U.S. Senate has no right to alter or dictate the conditions under which the state legislatures may grant their governors that power. In fact, some states have chosen not to grant that power to their governor at all.

So, the state dictates what must happen for an appointment to be valid and legal. The Senate has no authority to tell them what the state must do to make that appointment valid. The Senate may have its own rules, which contain certain requirements, but those requirements are not necessarilly constitutional. SCOTUS has ruled in the past that they did not have broad powers to establish their own qualifications.

In other words, if Illinois law says that 'if X, Y and Z happen, that means that Person A is the state's legally appointed Senator', then, the U.S. Senate probably has no right to say, 'no he is not because Q didn't happen.' They just can't tell the state what its process has to be.

So, the question is this - according to Illinois law, has whatever needs to happen for Burris to be their appointed Senator happened? Well, the law says what it says, not what someone thinks it should say. I believe the language is plain, all that needs to happen is that the governor appoint someone. No where can I find any wording that suggests that anything else needs to happen in order to make it a valid and complete appointment. If someone can find such wording, I'll be happy to concede the point.

Now, to be clear, Illinois law does place the general duty (*) on the SOS to sign and stamp the paperwork of any governor's actions; and, specifically to register his appointments. However, that has nothing to do with making the appointment valid - it already is. It is something he is required to do, not something that the governor needs him to do to sanction his actions. The SOS simply notarizes the governor's orders, for the purpose of the state's official record keeping. No where does it say that the act is needed to make the actions of the governor effective.

The fact that SOS White has registered the appointment concedes the point, in my opinion. The law doesn't require that he register 'pending appointments' or 'appointments that still need to be certified', only actual appointments. If the appointment hadn't already legally happened, he would not register it.

So, what the Senate is doing, in my opinion, amounts to an unconstitutional subjugation of states' rights. If a state sends them a duly elected or appointed Senator (which they have, in accordance with their laws), they can't say that they will only accept them if they are wearing a blue suit with a yellow tie. To do so, is an assumption of power that they just don't have.

Of course, as I said, it is really up to the courts to interpret the issue for certain.

Just my humble take on the matter.



(*) Note that this duty of the SOS is in a totally different part of Illinois code and has no attachment to the part which grants the governor authority to make appointments. It is a general duty of the SOS for all of the governor's orders. If the SOS's witholding of a signature and stamp makes the appointment not valid, then the SOS has the authority to make every action of the governor invalid. In effect, the governor would need the concurrence of the SOS to do anything - they would be co-governors.

 

[cwo_ghwebb]

I believe the issue regarding the propriety of SOS White's actions is pretty clear - he has acted inappropriately and contrary to Illinois law.

Also, I would say that it's clear to me that the U.S. Senate's actions are quite weaselly, even if they are not unconstitutional.

However, the question of whether or not the Senate's actions are actually unconstitutional was a little less clear to me. After having given it a fair amount of thought, I've decided that I think they are. Of course, the right to answer that question with certainty rests only with the federal court system, and in particular, with the Supreme Court. Unless and until they give a specific answer, there really is no precisely correct answer.

My reasons for concluding that the Senate's actions are unconstitutional are two-fold. One of those reasons has to do with SCOTUS' interpretation (in Powell v McCormack) of what rights Congress has to judge the qualifications of would be Congresspersons. Frankly, that argument is not strong enough or clear enough for me to have a definitve opinion based on it; so, I won't bother with it.

The second reason, I believe, is relatively clear. The Constitution gives state legislatures the right to enpower their executive to appoint Senators to fill vacant Senate seats. That is a right that the Constitution reserves to the states - the U.S. Senate has no right to alter or dictate the conditions under which the state legislatures may grant their governors that power. In fact, some states have chosen not to grant that power to their governor at all.

So, the state dictates what must happen for an appointment to be valid and legal. The Senate has no authority to tell them what the state must do to make that appointment valid. The Senate may have its own rules, which contain certain requirements, but those requirements are not necessarilly constitutional. SCOTUS has ruled in the past that they did not have broad powers to establish their own qualifications.

In other words, if Illinois law says that 'if X, Y and Z happen, that means that Person A is the state's legally appointed Senator', then, the U.S. Senate probably has no right to say, 'no he is not because Q didn't happen.' They just can't tell the state what its process has to be.

So, the question is this - according to Illinois law, has whatever needs to happen for Burris to be their appointed Senator happened? Well, the law says what it says, not what someone thinks it should say. I believe the language is plain, all that needs to happen is that the governor appoint someone. No where can I find any wording that suggests that anything else needs to happen in order to make it a valid and complete appointment. If someone can find such wording, I'll be happy to concede the point.

Now, to be clear, Illinois law does place the general duty (*) on the SOS to sign and stamp the paperwork of any governor's actions; and, specifically to register his appointments. However, that has nothing to do with making the appointment valid - it already is. It is something he is required to do, not something that the governor needs him to do to sanction his actions. The SOS simply notarizes the governor's orders, for the purpose of the state's official record keeping. No where does it say that the act is needed to make the actions of the governor effective.

The fact that SOS White has registered the appointment concedes the point, in my opinion. The law doesn't require that he register 'pending appointments' or 'appointments that still need to be certified', only actual appointments. If the appointment hadn't already legally happened, he would not register it.

So, what the Senate is doing, in my opinion, amounts to an unconstitutional subjugation of states' rights. If a state sends them a duly elected or appointed Senator (which they have, in accordance with their laws), they can't say that they will only accept them if they are wearing a blue suit with a yellow tie. To do so, is an assumption of power that they just don't have.

Of course, as I said, it is really up to the courts to interpret the issue for certain.

Just my humble take on the matter.



(*) Note that this duty of the SOS is in a totally different part of Illinois code and has no attachment to the part which grants the governor authority to make appointments. It is a general duty of the SOS for all of the governor's orders. If the SOS's witholding of a signature and stamp makes the appointment not valid, then the SOS has the authority to make every action of the governor invalid. In effect, the governor would need the concurrence of the SOS to do anything - they would be co-governors.

Thanks for a concise explanation and I concur with your reasoning. The problem is that nobody is holding the SoS accountable for his violation of the law; specifically, that he certify the appointment.

If Burris does take the matter to Court, then Dingy would get his peepee whacked. His behavior indicates he believes Senate rules trump the Constitution.

 

[This_person]

The Constitution gives state legislatures the right to enpower their executive to appoint Senators to fill vacant Senate seats. That is a right that the Constitution reserves to the states - the U.S. Senate has no right to alter or dictate the conditions under which the state legislatures may grant their governors that power. In fact, some states have chosen not to grant that power to their governor at all.

So, the state dictates what must happen for an appointment to be valid and legal. The Senate has no authority to tell them what the state must do to make that appointment valid. The Senate may have its own rules, which contain certain requirements, but those requirements are not necessarilly constitutional. SCOTUS has ruled in the past that they did not have broad powers to establish their own qualifications.

In other words, if Illinois law says that 'if X, Y and Z happen, that means that Person A is the state's legally appointed Senator', then, the U.S. Senate probably has no right to say, 'no he is not because Q didn't happen.' They just can't tell the state what its process has to be.

How is the Senate to know that the state laws have been met?

Wouldn't it be by the certified document from the state?

And, if a person shows up to be sworn in without that certified document, isn't it incumbent upon the Senate to send them away until they have the certification from the state that the person is the actual appointee?

 

[awpitt]

I believe the issue regarding the propriety of SOS White's actions is pretty clear - he has acted inappropriately and contrary to Illinois law.

Also, I would say that it's clear to me that the U.S. Senate's actions are quite weaselly, even if they are not unconstitutional.

However, the question of whether or not the Senate's actions are actually unconstitutional was a little less clear to me. After having given it a fair amount of thought, I've decided that I think they are. Of course, the right to answer that question with certainty rests only with the federal court system, and in particular, with the Supreme Court. Unless and until they give a specific answer, there really is no precisely correct answer.

My reasons for concluding that the Senate's actions are unconstitutional are two-fold. One of those reasons has to do with SCOTUS' interpretation (in Powell v McCormack) of what rights Congress has to judge the qualifications of would be Congresspersons. Frankly, that argument is not strong enough or clear enough for me to have a definitve opinion based on it; so, I won't bother with it.

The second reason, I believe, is relatively clear. The Constitution gives state legislatures the right to enpower their executive to appoint Senators to fill vacant Senate seats. That is a right that the Constitution reserves to the states - the U.S. Senate has no right to alter or dictate the conditions under which the state legislatures may grant their governors that power. In fact, some states have chosen not to grant that power to their governor at all.

So, the state dictates what must happen for an appointment to be valid and legal. The Senate has no authority to tell them what the state must do to make that appointment valid. The Senate may have its own rules, which contain certain requirements, but those requirements are not necessarilly constitutional. SCOTUS has ruled in the past that they did not have broad powers to establish their own qualifications.

In other words, if Illinois law says that 'if X, Y and Z happen, that means that Person A is the state's legally appointed Senator', then, the U.S. Senate probably has no right to say, 'no he is not because Q didn't happen.' They just can't tell the state what its process has to be.

So, the question is this - according to Illinois law, has whatever needs to happen for Burris to be their appointed Senator happened? Well, the law says what it says, not what someone thinks it should say. I believe the language is plain, all that needs to happen is that the governor appoint someone. No where can I find any wording that suggests that anything else needs to happen in order to make it a valid and complete appointment. If someone can find such wording, I'll be happy to concede the point.

Now, to be clear, Illinois law does place the general duty (*) on the SOS to sign and stamp the paperwork of any governor's actions; and, specifically to register his appointments. However, that has nothing to do with making the appointment valid - it already is. It is something he is required to do, not something that the governor needs him to do to sanction his actions. The SOS simply notarizes the governor's orders, for the purpose of the state's official record keeping. No where does it say that the act is needed to make the actions of the governor effective.

The fact that SOS White has registered the appointment concedes the point, in my opinion. The law doesn't require that he register 'pending appointments' or 'appointments that still need to be certified', only actual appointments. If the appointment hadn't already legally happened, he would not register it.

So, what the Senate is doing, in my opinion, amounts to an unconstitutional subjugation of states' rights. If a state sends them a duly elected or appointed Senator (which they have, in accordance with their laws), they can't say that they will only accept them if they are wearing a blue suit with a yellow tie. To do so, is an assumption of power that they just don't have.

Of course, as I said, it is really up to the courts to interpret the issue for certain.

Just my humble take on the matter.



(*) Note that this duty of the SOS is in a totally different part of Illinois code and has no attachment to the part which grants the governor authority to make appointments. It is a general duty of the SOS for all of the governor's orders. If the SOS's witholding of a signature and stamp makes the appointment not valid, then the SOS has the authority to make every action of the governor invalid. In effect, the governor would need the concurrence of the SOS to do anything - they would be co-governors.

Very good write up.

One question. The Constitution says, "Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide." Doesn't that give the Senate some say in the matter? Burris was turned away yesterday over a paperwork issue (missing signature). Had he shown up with papers containing both signatures, it would've been harder for the Senate to find a reason to turn him away.

 

[Tilted]

Very good write up.

One question. The Constitution says, "Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide." Doesn't that give the Senate some say in the matter? Burris was turned away yesterday over a paperwork issue (missing signature). Had he shown up with papers containing both signatures, it would've been harder for the Senate to find a reason to turn him away.

I think I posted something last week addressing this specific issue. The Supreme Court ruled, in Powell v McCormack )1969), that Congress' right to 'judge' the 'qualifications of its own members' was limited to those qualifications expressly identified in the U.S. Constitution. The Court ruled that they lacked broad authority to establish qualifications on which they could deny a duly elected Congressperson their seat.

I agree that the fact that Burris' appointment document wasn't signed by the SOS made it easier for the Senate to do what it did; however, I still believe that what it did was unconstitutional. There is, of course, room for different interpretations.

 

[Tilted]

How is the Senate to know that the state laws have been met?

Wouldn't it be by the certified document from the state?

And, if a person shows up to be sworn in without that certified document, isn't it incumbent upon the Senate to send them away until they have the certification from the state that the person is the actual appointee?

I understand your point, and concede that it has merit. Somehow they have to have a way to recognize what the state has done - whom they have chosen as their would be Senator. For the most part, that process of recognition is without dispute, so there is no issue. In this case it is in dispute and they must somehow figure out if this person purporting to be the person chosen by the state to be its Senator, is in fact such.

I think they should refer to the U.S. Constitution, and follow where the law leads them - ultimately reaching the conclusion that Illinois law, pursuant to the 17th Amendment, is telling them that if Blagojevich appointed Burris, then he is in fact the would be Senator. They follow that same kind of process every time they seat a Senator, except that all the points in the logic chain are assumed because they are identical to how it had been done so often in the past.

What they chose to do in this case, is place some additional, mostly arbitrary, requirement on how the state must identify their chosen Senator. (They may have had this technical requirement in place for every other Senator, but it wasn't in dispute and so it wasn't legally questioned.) I can understand their wanting to do that, but I'm not sure they have the right to. Essentially, by way of their rules, they are trying to tell Illinois which of its state officials have what powers. I just think that is overstepping their constitutional bounds.

Is the enforcement of this specific requirement reasonable? Perhaps. Could it be a slippery slope? Most definitely. They would essentially be granting the SOS of every state the authority to override (or at least delay) the electoral/executive decisions of that state - even if the state had granted its SOS no such power. If the SOS doesn't like the candidate who was elected, they just don't sign the certificate of election (because if the Senate has the authority to require a SOS signature in this case, they have the right to require it for actual elections). Sure, the state may be able to internally adjudicate the SOS' actions, but I don't think Congress has the right to dictate that process.

In this case, the letter of appointment signed by the governor is the proof of Burris' status, just as much as the signature of the SOS would be. I believe that Illinois state law means as much. The Senate shouldn't have the right to dictate that one is acceptable proof, but the other isn't. Perhaps a court will disagree with me.

 

[chernmax]

Funny how the Democrats have issues with Burris and Obama breezed by with little to no documentation about himself for the presidency!!!

 

[awpitt]

I think I posted something last week addressing this specific issue. The Supreme Court ruled, in Powell v McCormack )1969), that Congress' right to 'judge' the 'qualifications of its own members' was limited to those qualifications expressly identified in the U.S. Constitution. The Court ruled that they lacked broad authority to establish qualifications on which they could deny a duly elected Congressperson their seat.

Okay, that makes sense.

Well, I guess it's all academic now that the Senate is going to accept Burris.

 

[Tilted]

CNBC's on air reporters are reporting mumblings that the Senate Democrats are going to cave on the Burris' issue. They say that there is a growing belief that their position is not on stable footing.

 

[Tilted]

Burris' attorneys have filed this with the Illinois Supreme Court:

Supplemental Memorandum in Support of Motion to Accelerate

They filed a complaint for mandamus to compel White to sign the appointment document.

Then, they filed a motion to accelerate its consideration.

Then, after yesterday's actions by the Senate, they filed this.

 

[This_person]

I understand your point, and concede that it has merit. Somehow they have to have a way to recognize what the state has done - whom they have chosen as their would be Senator. For the most part, that process of recognition is without dispute, so there is no issue. In this case it is in dispute and they must somehow figure out if this person purporting to be the person chosen by the state to be its Senator, is in fact such.

I think they should refer to the U.S. Constitution, and follow where the law leads them - ultimately reaching the conclusion that Illinois law, pursuant to the 17th Amendment, is telling them that if Blagojevich appointed Burris, then he is in fact the would be Senator. They follow that same kind of process every time they seat a Senator, except that all the points in the logic chain are assumed because they are identical to how it had been done so often in the past.

What they chose to do in this case, is place some additional, mostly arbitrary, requirement on how the state must identify their chosen Senator. (They may have had this technical requirement in place for every other Senator, but it wasn't in dispute and so it wasn't legally questioned.) I can understand their wanting to do that, but I'm not sure they have the right to. Essentially, by way of their rules, they are trying to tell Illinois which of its state officials have what powers. I just think that is overstepping their constitutional bounds.

Is the enforcement of this specific requirement reasonable? Perhaps. Could it be a slippery slope? Most definitely. They would essentially be granting the SOS of every state the authority to override (or at least delay) the electoral/executive decisions of that state - even if the state had granted its SOS no such power. If the SOS doesn't like the candidate who was elected, they just don't sign the certificate of election (because if the Senate has the authority to require a SOS signature in this case, they have the right to require it for actual elections). Sure, the state may be able to internally adjudicate the SOS' actions, but I don't think Congress has the right to dictate that process.

In this case, the letter of appointment signed by the governor is the proof of Burris' status, just as much as the signature of the SOS would be. I believe that Illinois state law means as much. The Senate shouldn't have the right to dictate that one is acceptable proof, but the other isn't. Perhaps a court will disagree with me.

I feel far less legally capable than I think you are, but.... It seems to me that Illinois' form ALSO required the SOS signature. So, whether the Senate did or not, to me, is not the point. The appointee showed up without his paperwork in order on the STATE end, not just on the Senate end.

If this were ONLY over the Senate rules, I'd have to concede that this is Reid's problem in running the Senate. Since Illinois didn't provide Burris the required documentation to show up, this seems like Illinois' problem.

 

[Tilted]

I feel far less legally capable than I think you are, but.... It seems to me that Illinois' form ALSO required the SOS signature. So, whether the Senate did or not, to me, is not the point. The appointee showed up without his paperwork in order on the STATE end, not just on the Senate end.

If this were ONLY over the Senate rules, I'd have to concede that this is Reid's problem in running the Senate. Since Illinois didn't provide Burris the required documentation to show up, this seems like Illinois' problem.

I agree that that is the crux of the issue - does Illinois law require that the SOS' signature and stamp be affixed, in order for any of the Governor's commissions to be effective? I'd argue that a strict reading of their codes indicates that it does not. The duty to sign and stamp the paperwork, does not equate to a duty and/or authority to concur with the legal effect of the paperwork.

If someone interprets it as such, then they are saying that the Governor of Illinois can't do anything, in his official capacity, without the permission and concurrence of the Secretary of State. Based on their constitution and their laws, there just isn't anything to support that conclusion.

But I agree with your basic premise. As goes this question, so goes the bigger question, in my opinion.

 

[This_person]

I agree that that is the crux of the issue - does Illinois law require that the SOS' signature and stamp be affixed, in order for any of the Governor's commissions to be effective? I'd argue that a strict reading of their codes indicates that it does not. The duty to sign and stamp the paperwork, does not equate to a duty and/or authority to concur with the legal effect of the paperwork.

If someone interprets it as such, then they are saying that the Governor of Illinois can't do anything, in his official capacity, without the permission and concurrence of the Secretary of State. Based on their constitution and their laws, there just isn't anything to support that conclusion.

But I agree with your basic premise. As goes this question, so goes the bigger question, in my opinion.

I think you're stating two questions as one.

1. Does the Sec State's signature and stamp need to be affixed in order for a state implemented action to be official and complete?

2. Does the Sec State have the right to deny his/her signature/stamp for ANY reason whatsoever if the action he/she is signing has indeed occurred?

The first question will answer whether Burris should have been seated. The second question will answer what authorities the Sec State has - what the role of an elected official actually is in the capacity of Sec State. If that position has absolutely no function other than secretarial, I would suggest that Illinois (and any other state with a similar arrangement) reclassify the position to an hourly employee, not an elected official.

 

[Ken King]

I think you're stating two questions as one.

1. Does the Sec State's signature and stamp need to be affixed in order for a state implemented action to be official and complete?

2. Does the Sec State have the right to deny his/her signature/stamp for ANY reason whatsoever if the action he/she is signing has indeed occurred?

The first question will answer whether Burris should have been seated. The second question will answer what authorities the Sec State has - what the role of an elected official actually is in the capacity of Sec State. If that position has absolutely no function other than secretarial, I would suggest that Illinois (and any other state with a similar arrangement) reclassify the position to an hourly employee, not an elected official.

Question 1, according to Senate Rule II, the Secretary of State signature is a requirement on the credentials, they even supply the forms for the states to use should they choose to. And as the US Constitution grants sole authority for each house of Congress to determine its rules of proceedings those rules should be adhered to.

Question 2, Illinois law says at (15 ILCS 305/5) It shall be the duty of the Secretary of State:
1. To countersign and affix the seal of state to all commissions required by law to be issued by the Governor.

Illinois law gives no authority that I can find for the Secretary of State not to sign the commission. The Illinois Secretary of State appears to be in the wrong, but I see the US Senate within its right to require compliance with the rules that they have determined to be in effect.

 

[Tilted]

Secretary of State White has filed his response to Burris' complaint for writ of mandamus, in the Illinois Supreme Court.

He argues, unambiguously, that he has done all that he is required to do under the law. Even he recognizes that the appointment does not require his signature, in order for it to be valid. He argues that he has no duty to sign the appointment document, because of the wording of the state statute. He further argues that the Senate's rules do not require his signature on the appointment document, in order that Burris be the valid appointee. He says that the form from U.S. Senate Rule II is a recommendation, and that the state may use it "if they see fit".

He tells the Illinois Supreme Court that they should not grant Burris complaint for mandamus, because there is nothing left for him (White) to do. In essence, he's saying the ball is in the U.S. Senate's court. They are the ones who need to act.

The Secretary has performed all of his legal duties regarding the Burris appointment. This Court cannot compel the U.S. Senate to seat petitioner Burris, but nothing remains to be done by the Secretary to complete the appointment process and to enable the U.S. Senate to seat Burris.

...

The Illinois Election Code specifies the process to fill a U.S. Senate vacancy in Illinois. 10 ILCS 5/25-8 (2006). That statute provides that the Governor "shall make temporary appointment" to fill the vacancy, and it does not require the Secretary to undertake any action to effectuate the Governor's appointment. Id.

...

Additionally, the Secretary has performed all of his legal duties under the Secretary of State Act (Act). Section 5(2) of the Act applies to gubernatorial appointments, including the Burris appointment, and requires the Secretary to "make a register of all appointments by the Governor." 15 ILCS 305/5(2) (2006). There is no dispute in this case that the Secretary immediately registered the appointment. (Pet. Motion to Accelerate at 5, Ex. A). By doing so, he performed all of his legal duties under the Act. Significantly, the registration requirement does not require the Secretary to countersign or affix the state seal to any document. 15 ILCS 305/5(2) (2006)

Pardon any errors in these excerpts - I had to type them out, since the nature of the file would not let me cut and paste them. Also, I didn't include the wording of some of his arguments for that same reason.

 

[Tilted]

Question 1, according to Senate Rule II, the Secretary of State signature is a requirement on the credentials, they even supply the forms for the states to use should they choose to. And as the US Constitution grants sole authority for each house of Congress to determine its rules of proceedings those rules should be adhered to.

Even if this is true, which is dubious, that doesn't mean that the U.S. Senate has the constitutional right to make such requirements. The ruling of SCOTUS in Powell v McCormack, which I have referenced above, dictates that Article I, Section 5 of the U.S. Constitution (which I believe you are referring to) does not give the Senate the authority to exclude a would-be Senator on the basis of any qualifications that aren't specifically expressed in the U.S. Constitution.

They made a significant distinction between exlcuding someone and expelling someone. They also addressed, in a tangential way, the grounds on which they may expel a member.

 

[Ken King]

Even if this is true, which is dubious, that doesn't mean that the U.S. Senate has the constitutional right to make such requirements. The ruling of SCOTUS in Powell v McCormack, which I have referenced above, dictates that Article I, Section 5 of the U.S. Constitution (which I believe you are referring to) does not give the Senate the authority to exclude a would-be Senator on the basis of any qualifications that aren't specifically expressed in the U.S. Constitution.

They made a significant distinction between exlcuding someone and expelling someone. They also addressed, in a tangential way, the grounds on which they may expel a member.

What is dubious about the second paragraph of Article I, Section 5 of the Constitution? Does the Constitution not afford each house of Congress the authority to establish rules of the proceedings? Doesn't Rule II simply re-enforce compliance with 2USC1b requiring the counter-signiture?

 

[Tilted]

What is dubious about the second paragraph of Article I, Section 5 of the Constitution? Does the Constitution not afford each house of Congress the authority to establish rules of the proceedings? Doesn't Rule II simply re-enforce compliance with 2USC1b requiring the counter-signiture?

I was referring to the truth of the statement I bold-ed. That being, 'according to Senate Rule II, the Secretary of State signature is a requirement on the credentials'.

Rule II says that the Secretary of the Senate shall keep a journal which includes various information about the election/appointment of Senators. Among that information is the name of the SOState which signed the certificates. That is not the same as saying that the SOState's signature is a requirement for the Senator to be seated, it merely assumes that it will be present. Also, Rule II says that the Secretary of the Senate shall send copies of the 'recommended' form to the states so that 'they may use such forms if they see fit.'

So, by using the word dubious, I suggested that it is in doubt whether or not Senate Rule II makes the Secretary of State's signature a requirement. That is the very limited and specific point I was making. I didn't state that it wasn't true, just an issue that is in dispute. SOS White himself, argues that his signature is not required by Senate Rule II.

As for Article 1, Section 5 of the Constitution - yes, it does afford (the houses of) Congress the authority to establish 'Rules of its Proceedings', and based upon those, it may expel members. SCOTUS drew a bright line of distinction between expelling a member and excluding a member. The Court said that they cannot exclude a member on the basis of anything, other than the qualifications specifically written in the Constitution.

They can make their own rules - but those rules cannot exclude a duly elected (in this case appointed) person from taking their seat, unless they fail the Constitutional tests for the office. As far as whether or not Burris is duly appointed, that is another question. But, it has become pretty clear that he is. That is based on the reading of Illinois law, the declarations of SOS White, and various other legal opinions offered to the Illinois Supreme Court. I don't see anyone in the legal community arguing that he isn't duly appointed, merely because White hasn't signed the papers that appointed him.

 

[Ken King]

I was referring to the truth of the statement I bold-ed. That being, 'according to Senate Rule II, the Secretary of State signature is a requirement on the credentials'.

Rule II says that the Secretary of the Senate shall keep a journal which includes various information about the election/appointment of Senators. Among that information is the name of the SOState which signed the certificates. That is not the same as saying that the SOState's signature is a requirement for the Senator to be seated, it merely assumes that it will be present. Also, Rule II says that the Secretary of the Senate shall send copies of the 'recommended' form to the states so that 'they may use such forms if they see fit.'

So, by using the word dubious, I suggested that it is in doubt whether or not Senate Rule II makes the Secretary of State's signature a requirement. That is the very limited and specific point I was making. I didn't state that it wasn't true, just an issue that is in dispute. SOS White himself, argues that his signature is not required by Senate Rule II.

As for Article 1, Section 5 of the Constitution - yes, it does afford (the houses of) Congress the authority to establish 'Rules of its Proceedings', and based upon those, it may expel members. SCOTUS drew a bright line of distinction between expelling a member and excluding a member. The Court said that they cannot exclude a member on the basis of anything, other than the qualifications specifically written in the Constitution.

They can make their own rules - but those rules cannot exclude a duly elected (in this case appointed) person from taking their seat, unless they fail the Constitutional tests for the office. As far as whether or not Burris is duly appointed, that is another question. But, it has become pretty clear that he is. That is based on the reading of Illinois law, the declarations of SOS White, and various other legal opinions offered to the Illinois Supreme Court. I don't see anyone in the legal community arguing that he isn't duly appointed, merely because White hasn't signed the papers that appointed him.

As you are equating elected versus appointed to be the same wouldn't the laws of the land requiring such signature be applicable in either case? Under laws (that have been in place since 1866) it states that "It shall be the duty of the executive of the State from which any Senator has been chosen to certify his election, under the seal of the State, to the President of the Senate of the United States." and that "The certificate mentioned in section 1a of this title shall be countersigned by the secretary of state of the State."

Furthermore, the case you reference (Powell v McCormack) was concerning a duly elected/appointed member with the appropriate credentials, properly endorsed as required, being excluded and not a case of an appointed member without the appropriately endorsed credentials. Herein lies the difference, at least for me.

Now back to White, how does he justify not signing the appointment commission when Illinois statute specifically states within the Secretary of State Act that "It shall be the duty of the Secretary of State:
1. To countersign and affix the seal of state to all commissions required by law to be issued by the Governor."?