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A constitutional morass?

By Jack M. Balkin

I gather that the current argument being made by Harry Reid and others is that the Senate can reject Burris because of a Senate rule that requires that a state's secretary of state sign the certificate of appointment. The Illinois secretary of state has refused to do so, presumably as an act of personal civil disobedience inasmuch as no legal grounds have been offered. See, e.g., the following dispatch:

A spokesman for Illinois Secretary of State Jesse White (D) confirmed to Election Central that White knows he does not truly have the authority to stop the appointment of Roland Burris to the Senate, but he withheld his signature from it earlier today in order to make a statement. But the door does appear to be open to some legal ramifications.

"His feeling is we studied the constitution of Illinois, we looked at the statutes, and there was nothing there that said he had to sign the paperwork," said David Druker, White's press secretary.

"We don't believe he has the authority to hold up the appointment or veto it, to put it that way," Druker added. "How the U.S. Senate views the action, that would be for the U.S. Senate to determine."

Assuming that the Senate does have a rule requiring the secretary of state's signature, why wouldn't that violate the 17th Amendment by adding a "qualification" nowhere mentioned in the amendment? The relevant part of the Amendment reads as follows: "When vacancies happen in the representation of any State in the Senate, the executive authority of each 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." It appears that the Illinois legislature has long since passed a statute authorizing the governor to make an appointment, without mentioning anything about a veto right to be given the secretary of state. Or is the failure of Illinois to include a clause saying that "the secretary must sign a certificate" the equivalent of giving him/her a veto right, e.g., the equivalent of saying "the secretary is entitled to decide whether he/she approves of the governor's appointment and, if not, to refuse to sign the certificate?" [SEE UPDATE BELOW, WHICH SEEMS CONCLUSIVELY TO INVALIDATE ANY SUCH READING OF ILLINOIS LAW.] In any event, I do not see where the Senate believes it has the authority to define "the executive" of a state differently from the definition adopted by a state itself.

If one supports the refusal of the Illinois Secretary of State to sign a commission that is lawful on its face, then does this also suggest support for the proposition that the Attorney General could announce a refusal to enforce any laws signed post-arrest by the now-discredited Governor or that the head of the Illinois national guard should refuse to accept any orders by the person who I presume is the "commander-in-chief" of the guard unless it is federalized? If this were really an important issue, and not simply a bit of political entertainment about the relatively meaningless filling of a Senate seat, I think we could start speaking the language of "constitutional crisis" similar to that, say, of the Dorr Rebellion in Rhode Island in the 1840s. But, as Marx noted, first time tragedy, second time farce, so, for better or worse, it's only a "constitutional morass" and what Vermeule and Posner have labeled a "showdown."

UPDATE: A reader has sent me the following passage from Illinois law (15 ILCS 305/5) (from Ch. 124, par. 5):

Sec. 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.
2. To make a register of all appointments by the Governor, specifying the person appointed, the office conferred, the date of the appointment, the date when bond or oath is taken and the date filed..... (emphasis added)

Full post as published by Balkinization on January 05, 2009 (boomark / email).