Are appointments of Senators unconstitutional?
By John Burke | Related entries in Constitution, Illinois, SenateThomas Geoghegan, a well-known liberal lawyer who is running for Congress in Illinois, had an op-ed piece in the The New York Times yesterday that raised a question I must admit I hadn’t known even was a question: are appointments by governors to fill Senate vacancies unconstitutional?
The 17th Amendment to the U.S. Constitution, adopted in 1913 to require the election of Senators by the people, not by state legislatures, also requires governors to “issue writs of elections” when Senate vacancies occur. It then adds this proviso: “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.”
According to Geoghegan, “the proviso simply allows the governor to make a temporary appointment until there is a special election at such time and place that the legislature determines.” It does not cancel the requirement to “issue writs of elections.”
“Yet the current practice in virtually every state flips the proviso to override the main clause,” Geoghegan notes, a practice that “frustrates the whole democratic thrust of the amendment.”
Geoghegan points out that the Supreme Court has never ruled definitively on this practice, even though its been going on for decades. He says the only precedent comes from a decision by a federal appeals panel (Valenti v. Rockefeller) upholding the Governor of New York’s decision to fill the vacancy created by Robert F. Kennedy’s murder. That decision rested on the fact that Kennedy’s death in June 1968 did not leave enough time to hold a primary prior to an election in November of that year.
This is fascinating. If Geoghegan is right, someone might be able to challenge the constitutionality of Rod Blagojevich’s appointment of Roland Burris (or any other gubernatorial appointment). Any thoughts on this from all the Constitutional scholars out there?
(Visit me at The Purple Center)
This entry was posted on Thursday, January 8th, 2009 and is filed under Constitution, Illinois, Senate. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
January 8th, 2009 at 2:52 pm
There is not a single piece of the 17th Amendment than can challenge the constitutionality of Burris’ appointment by Blagojevich. What can be challenged is how long he sits in the Senate, by forcing the issue of the ‘writ of elections’. The appointment is already “provided” for in the amendment, and the op-ed piece never questions it.
Reading the proviso, though, shows how much spin the author of the op-ed piece is putting on it in order to get his article published (and sell ore of his books). The answer is the final line: “… until there is a special election at such time and place that the legislature determines.†Simply stated, the legislature decides when to hold the election. So, they have every right to say “we’ll hold the election with the next general election, or whenever the normal election for that seat should be”. Done, case closed.
I believe it is the feeling of most legislatures and governors that filing the ‘writ of elections’ is a waste of time and effort, because the legislatures will just follow the above logic and nothing in the process is affected.
That being said, there is still nothing in the Constitution that was violated when Blago, still sitting in his seat as Governor of Illinois, appointed Burris to the vacancy.
The real question is: how many Illinois state laws did Jesse White violate by not signing the appointment papers? Where is the law written that gives him such overriding power over the Governor? As far as I read, that power is only left to the Illinois Supreme Court.