Cross-posted from Congress Matters.

Coupla Ivy League types think it can be done.

Yale's Prof. Akhil Reed Amar and Cornell's Prof. Josh Chafetz say it goes like this:

  1. Art. I, sec. 5 says, "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members."
  1. What's a "Return?"

According to the Oxford English Dictionary, a "Return" in the time of the framers involved a report of an appointment made by a sheriff or other official.

  1. Powell v. McCormack said the House (and presumably the Senate as well) couldn't impose new qualifications beyond those set forth in the Constitution -- age, citizenship, residency. But it didn't say the Senate (or House) couldn't judge the "returns." (There wouldn't be any in the House, anyway, since nobody's ever appointed to the House).
  1. If Blagojevich's appointment documentation is a "return," then the Senate can "judge" it. And reject it.

Of course, it's a little hinky to say they've "judged" anything, given that nobody's yet made any credible accusation implicating the validity of the documentation. Is it forged? Was it purchased? Did the governor sign it under duress? All possible, but nobody's said so yet, much less proved it.

But would it matter? If the Senate is genuinely basing its decision to exclude Burris on one of the three enumerated criteria -- elections, returns, qualifications -- then their power may be absolute and unreviewable. On the other hand, though there would be no question as to the Senate's claim to be deciding a question of one of the three enumerated criteria, given that there's no evidence, nor even an accusation, really, can they really be said to be "judging" anything? Maybe. They'd be "judging" rather poorly, by courtroom standards. But the Senate isn't a courtroom. And an action that can fit neatly enough into the definitions of Art. I, sec. 5 might be perfectly permissible whether it's based on a good faith judgment or not.

So that's another little bit of input on the legal aspects. Of course, even being "right" wouldn't mean this settles it. There's a good argument put forward here, but that's not likely to intimidate Burris into declining to fight.

But this is designed to:

Finally, the Senate can bulletproof its vote to exclude Burris by adopting an anticipatory "sense of the Senate" resolution declaring that if Burris were ever to take the matter to a federal court and prevail, the Senate would immediately expel him.

Yes they can. But would they? To begin with, a 2/3 vote is never easy to come by on a contentious issue. Plus, there are other political considerations. Do Democrats need the vote? Do racial issues that have been raised surrounding the appointment and the Senate's resistance persist? Do Senate Dems really only find the political will to fight to the death to protect its prerogatives when there's no chance that any Republicans will say something nasty about them?

Procedurally, there's probably not a huge problem in getting to the point where you can pull things off along the lines that Amar and Chafetz suggest. That is, for Harry Reid to make a motion that the Senate refer the Burris case to committee, and that his seating be delayed until the case is resolved. (Alternatively, they could seat him provisionally  and consider expulsion at some later date, should the investigation suggest it's necessary.) But it may require some bipartisan cooperation to do it smoothly. And while there's no indication that anyone intends to cause the kind of trouble that could make things complicated, nothing's ever a given.

Nor does a solid theory by itself solve the puzzle.

Originally posted to Daily Kos on Thu Jan 01, 2009 at 06:00 PM PST.

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