Tilted
..
There are a bunch of different technical issues here that are overlapping each other. So keeping them separate and dealing with each, while not giving the wrong impression of what someone is actually saying isn't easy.
First, I didn't claim to have a definitive opinion on whether or not the Senate's rules (or even US Code) require the state's SOState to certify the appointment. I merely pointed out that the veracity of a statemnt that they do, is in doubt.
Second, although I haven't read enough of the pertinent US Code to say with confidence that there is not such a rule, I do, at this moment believe that there is not. The code section to which you refer is to certify an election. That is indeed a very different animal than an appointment, in as far as its need to be certified. It is very reasonable that legislatures might mandate that an election be certified, but not mandate the same for an appointment. Why, is a different matter that can be addressed separately. Regardless, laws are what they say, and that section of code doesn't say anything about certifying a letter of appointment. Sometimes a court does interpret a statute in a broadening way, but generally they are just interpreting what the words actually mean - not expanding on a general principle referred to by the statute, as they might do with the Constitution. Could that section of US Code, in theory, be interpreted to apply to letters that appoint Senators? Yes - that is why I referenced the statement as 'dubious', as opposed to 'wrong'.
Third, as far as the Powell decision goes, as you no doubt saw, it is an exploration of a great many nuances. Picking out one specific passage to illustrate the interpretive effect of the opinion is not easy, and can never completely express the meaning of their ruling. That being said, I refer to this statement from their conclusion:
The passages in parenthesis are case specific, but the import of a SCOTUS ruling is that it is the precedent by which other cases are decided. Reading this simple statement from the Court, it is clear what the precedent is.
If someone meets these two technical conditions,
(1) they were duly elected by their constituents, and,
(2) they are not ineligible to serve under provisions of the Constitution; then
Congress is without power to exclude them.
Examining the two conditions is a different story. But briefly - I've seen no one assert that he didn't meet (2). The only one that could possibly be questioned is (1). As I've said earlier, reading Illinois law and the declarations of various legal entities in Illinois, he seems to be duly and validly appointed. I don't see anyone in the legal community disputing that.
So, we have just the question of whether or not SCOTUS' ruling would apply to appointments, as well as elections. Certainly someone could argue that it doesn't, but I firmly believe that it does. For one, the distinction between election and appointment is trivial in regard to the principle expressed in this SCOTUS ruling - that being that Congress does not have the right to put conditions on the inclusion of its members. That power (or lack thereof), and its relationship to the wording of the Constitution, would not seem to be affected by the distinction between elected and appointed. The fundamental principle is still of import - Congress (the federal government) has no right to condition whom a state may choose, through the state's statutory processes, to represent that state. That is the right of the state, except as it is restricted by the Constitution and the interpretations thereof. To me, this isn't an issue of Burris' rights, it is an issue of Illinois' (i.e. state's) rights.
I can appreciate that someone might conclude that making the state do a specific kind of paperwork is not placing conditions on the state's rights. But, in the strictest sense it is. It, in and of itself, is not a big deal - but if we give Congress such 'conditioning' authority, what other conditions might they seek to impose? No matter my opinion on that, the point still remains that SCOTUS has decided that they don't have ANY conditioning authority; so, unless and until the Court modifies or further defines that limitation, I don't believe they have the right to make any additional conditions.
One more note on this line of thought, that is to address the seemingly contrary arguments about the interchangeability between election and appointment found in my arguments above. In one instance it is in codified law, and in the other it is in a SCOTUS opinion. The natures of those instruments are very different. A SCOTUS opinion is meant to be a guide used to rule on other cases, in which similar fundamental principles are in question. The specifics of the particular case before SCOTUS are used to give insight into how courts should resolve generally similar cases, with different specific details. Accordingly, the Court's opinions are worded in the expectation that they will be used in that way. They just can't answer every specific question that will ever be in dispute. On the other hand, the law is meant to be the law. It is meant to address much more specific acts and to make, by inclusion or exclusion, distinctions between different acts as being legal or illegal. Furthermore, I can't see reasons why the distinction would be meaningful in the context of the Powell decision, but I can see reason why the distinction would matter in the context of the need for the US Code in question.
As I said, there are many different, subtle issues in this situation. Some of the links in the logic chain that dictates right from wrong are certainly open to variant interpretations. In this thread, and the other, I have merely offered my considered opinions on some of them. I don't presume to be precisely correct. The power to be definition-ally correct lies only with the U.S. Supreme Court.
Boy, that was a whole bunch of rambling, I'll answer the last question in a subsequent post.
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