Burris For U.S. Senate - Rights v. Preference

By Syreeta L. McNeal, CPA, JD

Recently, there has been a stimulating debate over whether Illinois’s U. S. Senator designate, Roland Burris, is entitled to fill the Illinois Junior Senate seat after embattled Illinois Governor Rod Blagojevich’s appointment on December 30, 2008. Majority Senate Leader, Harry Reid, is stating that Illinois Governor Blagojevich’s appointment is tainted and is not valid because of Blagojevich’s recent arrest and federal complaint brought by the Federal Bureau of Investigation (FBI). With all due respect to the Honorable Harry Reid, his argument is more political than legal and shows his preferences in trying to determine the outcome of who should fill the Illinois Senate seat. Unfortunately, Senate Majority Leader Reid, who is a lawyer, should know that Burris is legally entitled to be seated as a U. S. Senator from the state of Illinois.

U. S. Constitution Denotes Senate Appointments as a State Right

The U. S. Constitution denotes the senate appointment after a vacancy as a specific state right not one to be manipulated by congressional leaders. The specific constitutional provision that addresses the replacement of vacancies in the U. S. Senate is the 17th Amendment of the U. S. Constitution. 17th Amendment, Clause 2 states “When vacancies happen in the representation of any State in the Senate, the executive authority of such 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.”[1] This provision is important because it specifically grants the authority of senate appointments after vacancies in the hands of the states, not Congress.

Amendment XVII has backing because of another constitutional provision, Article V. Article V of the U. S. Constitution states “….Amendments…. shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures…. or by Conventions.”[2] The importance of Article V is that its gives the Amendments equal weight of importance to the Articles of the Constitution. Therefore, if an Amendment is ratified and specifically changes or narrows the scope of another provision in the Constitution, then the effect of any Amendment is binding as part of the Constitution.

An example of how Article V of the U. S. Constitution works is with the phrase “three fifths of all other persons” as mentioned in Article I.[3] In colonial times, three fifths of all other persons meant black slaves. What the 13th, 14th, and 15th Amendments did was to remove the impact of blacks being classified as three fifths of a person. The same logic applies with 17th Amendment by it specifically tailoring the senate appointment after vacancies to be done by the states.

For Burris, Illinois Governor Blagojevich was still the formal governor of the state of Illinois on December 30, 2008. The Illinois legislature did not remove Blagojevich prior to the Burris appointment nor change the Illinois Constitution to allow a special election to determine the U. S. Senator appointment after the vacancy. Also, Illinois Governor Blagojevich did not resign his post. So, the Burris appointment is valid under the 17th Amendment of the U. S. Constitution.

Courts will likely Validate the Burris Appointment

For those students entering law school, you will likely get bombarded with the 1803 U. S. Supreme Court case, Marbury v. Madison, in Constitutional Law.[4] Well, the Burris appointment has legal backing because of this case. To summarize the facts of the case, outgoing President John Adams appointed William Marbury as justice of the peace for the District of Columbia.[5] President Adams signed the commission letter and affixed the seal of the U. S. Presidency and delivered it to Secretary of State James Madison for delivery.[6] With incoming President William Jefferson, Secretary of State Madison refused to deliver the commission letter of appointment to Marbury and as a result Marbury commenced a writ of mandamus to compel Secretary of State Madison to deliver President Adams’ commission letter for the appointment.[7]

The Supreme Court held that the appointment by President Adams and his signature on the commission letter is all that was needed to validate the appointment of Marbury as justice of the peace for the District of Columbia.[8] Also, the Court held that “with commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the president. He is to affix the seal of the United States to the commission, and is to record it.”[9]

Now, Marbury v. Madison is still good law. To follow the same logic as presented in the Burris appointment, Illinois Governor Blagojevich appointed Burris and signed the commission letter for the appointment. This is all that was needed to validate the act. The Illinois State Supreme Court has already ruled that the Burris appointment is valid and neither Illinois Secretary of State Jesse White nor any other state official is needed to certify the Burris appointment.[10] The U. S. Supreme Court, applying Marbury v. Madison, will likely uphold the Burris appointment to the Illinois Senate seat as well.

Similar to Secretary of State Madison, Majority Senate Leader Harry Reid is using games to delay or ignore the legal Burris appointment by keeping Burris out of the Senate swearing in ceremony due to the fact that he does not have the signature of the Illinois Secretary of State. However, any lawyer should know that this gamesmanship tactic will be to no avail because Burris has U. S. Supreme Court case law in Marbury v. Madison and the 17th Amendment of the U. S. Constitution to validate his Illinois Senate seat appointment.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

[1] U.S. Const. amend. XVII, cl. 2.
[2] U.S. Const. art. V.
[3] U.S. Const. art. I, § 2, cl. 3.
[4] See Marbury v. Madison, 5 U.S. 137 (1803).
[5] Id. at 138.
[6] Id.
[7] Id.
[8] Id. at 157.
[9] Id. at 158.
[10] http://www.ft.com/cms/s/0/a52815d4-de26-11dd-8372-000077b07658.html?nclick_check=1

When Wisdom, Honesty, and Judiciousness No Longer Seem to Matter: Will President Elect Obama Save The Day

By Dr. Wilmer J. Leon III, Ph.D.

It has not taken long for the criticism, skepticism, and second guessing to begin. Barack Obama has not even been sworn in as the 44th President of the United States and his critics on the so-called progressive left are angry that his cabinet selections suggest a shift to the center or to the right. Meanwhile, critics on the right claim that his actions in response to disgraced Illinois Gov. Blagojevich are politically motivated.

There are few political realities that Obama’s detractors need to appreciate and respect. There is a difference between campaigning and governing. During the primaries both candidates, McCain and Obama played to their bases in order to win their parties nominations. In the general election both candidates had to move closer to the center than their bases preferred in order to have any chance of winning. Many would argue that McCain’s failure to move closer to the center, i.e. selecting Gov. Palin as his running mate to placate the conservative base, cost him dearly.

Now that Senator Obama is president-elect Obama, he has to focus on governing. He can’t effectively govern from the progressive left. America is not as liberal or progressive as the left would like nor as conservative as the right would claim. These political realities are compounded by the practical realities of the housing crisis, banking crisis, wars in Iraq and Afghanistan, auto company crisis, etc., etc., etc.

For the most part, president-elect Obama has chosen to fill his cabinet with competent administrators and not ideologues. He seems to be focused on real solutions not theory, conjecture, or philosophy. He is selecting individuals who understand how Washington works and will be able to help structure legislation, pass legislation, and implement effective policy. Obama decided to retain the services of Robert Gates as defense secretary in order to ensure continuity in defense strategy in these very perilous times. While this does not sit well with the progressive left, no one has greater first hand knowledge of the complex issues that face America today.

Granted, not all of the individuals selected have unblemished records. For example, Senator Clinton or “Billary” voted for the war and brings Bill with her. Much to the dismay of progressives, during the Clinton administration Congressman Rahm Emanuel helped to get NAFTA, the Crime Bill, and welfare reform passed. In private practice Eric Holder has represented some questionable corporate clients. In spite of these issues, if president-elect Obama is as strong willed as a president as he was a candidate, these appointees and others will be implementing his policies and not allowing the interests of others to control him.

During the primaries and general election, Barack Obama was criticized by Senator’s Clinton, Biden, McCain and pilloried in the media for not having the requisite experience to “answer the 3:00 AM call” or respond to a real crisis. Gov. Palin questioned his experience as a “community organizer” by saying, "I guess a small-town mayor is sort of like a ‘community organizer,’ except that you have actual responsibilities…" Now that he is selecting experienced and qualified people to serve in his cabinet, including some of his former detractors the criticism has changed from a lack of experience to whether he has abandoned the progressive left. Some progressives are even calling into question his commitment to their issues and his honesty.

As if the attacks from the left are not enough, the right has launched their attack as well. As a result of Illinois Gov. Blagojevich, a fellow Democrat, being charged with conspiring to sell president-elect Obama’s now-vacant Senate seat, political vultures are circling overhead trying to tie him to the scandal.

In spite of the fact that U.S. Attorney Patrick Fitzgerald has said prosecutors were making no allegations that Obama was aware of any scheming; Rep. Eric Cantor of Virginia is on record as saying, "The serious nature of the crimes listed by federal prosecutors raises questions about the interaction with Gov. Blagojevich, President-elect Obama and other high ranking officials who will be working for the future president,…" Why does this raise questions when no connection, direct or indirect has been made? Just as in a time of war, America is in such dire straights that now is not the time for partisan “gotcha” politics of past.

In spite of the fact that Blagojevich himself, is on record having said, "they're (the Obama team) not willing to give me anything except appreciation," Robert M. "Mike" Duncan, chairman of the Republican National Committee (RNC), states "President-elect Barack Obama's comments on the matter are insufficient at best." President-elect Obama has stated, "I had no contact with the governor or his office, and so I was not aware of what was happening" and the U.S. Attorney has made no allegations to the contrary. What else is Obama to say? The truth is its own defense.

Instead of contributing to the media feeding frenzy, president-elect Obama and his team are being measured, judicious, and practical in their approach to this issue. Obama said on Friday, December 12th that he would release the results of an internal investigation into what conversations his aides and advisers may have had with Blagojevich in a matter of days. "What I want to do is to gather all the facts about any staff contacts that may have taken place between the transition office and the governor's office," Obama said. Instead of allowing Obama time to determine the facts, Duncan levies criticism by saying, “Americans expect the highest degree of transparency from their elected leaders, rather than promises of openness on the campaign trail." As chairman of the RNC Duncan is the spokesperson of the party and speaks for every Republican who does not say otherwise.

According to the Wall Street Journal, “President-elect Barack Obama's transition team said it had completed an internal review of contacts with Illinois Gov. Rod Blagojevich -- but wouldn't release its findings until Christmas week, at the request of federal investigators.” In a written statement released by his office late Monday, U.S. Attorney Patrick Fitzgerald confirmed that he asked for the delay, saying he wanted more time to conduct interviews. Conservative journalist Britt Hume says, “It is curious that Obama has been so cautious about it. He is a cautious man, but you do wonder, don't you? Wonder about what? Even though the Obama team does not have to comply with the request, why would they not?

The one thing that president-elect Obama and his team can not do is get caught up in the conservatives questions or the media’s frenzy and start to put out statements that later prove to be inaccurate. They must remain disciplined and not allow the desire for short-term responses to cause long-term problems.

I am in no way trying to insinuate that president-elect Obama and/or his team are above reproach or should not be questioned. Democracy demands that our representatives be held accountable for what they say and what they do. For the progressive left to question cabinet appointments and claim that they’ve been abandoned or betrayed before the first executive order has been signed or the first piece of legislation proposed is premature, reactionary, and some what naïve.

For the conservative right to try and create a story where there is none is just republican politics as usual. This just demonstrates that they have not learned a lesson from the recent election; the American electorate is tired of their politics as usual.

It is important to understand that many of the causes of the countries problems are grounded in flawed ideology designed to consolidate power and wealth into the hands of a few while the majority in this country are left to suffer. The solutions to these problems will not be grounded in ideology; they will require vision, wisdom, honesty, judiciousness, collaboration, and cooperation. All of these are qualities that president-elect Obama has demonstrated through out his life and career. If they were good enough to get him elected president why can’t people be patient enough to see if they will also help him govern?

Ask not what a President Barack Obama will do for you; ask what you can do to help a President Barack Obama address the tremendous issues that this country is facing.

Dr. Wilmer Leon is the Producer/ Host of the nationally broadcast call-in talk radio program “On With Leon,” a regular guest on CNN’s Lou Dobb’s Tonight, and a Teaching Associate in the Department of Political Science at Howard University in Washington, D.C. Go to www.wilmerleon.com or email: wjl3us@yahoo.com.

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