Posts Tagged ‘Nancy Erickson’

Illinois Senate Appointee, Roland Burris, Denied Entry to the Senate. Was That Denial Legal?

January 6, 2009

Today, Roland Burris (D-IL), the guy that Illinois Governor Rod Blagojevich (D) appointed to fill President-Elect Obama’s vacant seat, went to Washington, D.C., proclaiming himself the junior Senator from Illinois.  Before trying to enter the Senate, he told reporters, “My name is Roland Burris.  I am the junior senator from the state of Illinois.”

The Secretary of the Senate disagreed.  She refused to seat Burris because his credentials were not in order, since the Illinois Secretary of State Jesse White (D) had refused to co-sign his certification.

White had earlier released this statement:

As I have previously stated publicly, I cannot co-sign a document that certifies any appointment by Rod Blagojevich for the vacant United State Senate seat from Illinois.

Although I have respect for former Attorney General Roland Burris, because of the current cloud of controversy surrounding the Governor, I cannot accept the document.

Well, in my opinion, White really doesn’t have a choice, and Rod Blagojevich didn’t have a choice as to appointing or not appointing somebody.  Here’s an excerpt from the Illinois Compiled Statutes:

(10 ILCS 5/25‑8) (from Ch. 46, par. 25‑8)
    Sec. 25‑8. When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.
(Source: Laws 1943, vol. 2, p. 1.)

And here’s another excerpt:

    (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. If Senate confirmation is required, the date of the confirmation shall be included in the register.

The Secretary of State legally CANNOT refuse to sign the certificate.

So, Burris left the Senate saying he was “not seeking to have any type of confrontation.”

So, this leaves us in a situation similar to one we’ve seen before: the 1803 case of Marbury v. Madison.  For those of you who have forgotten the case since high school government class, here are some resources for you to refresh yourself: http://www.landmarkcases.org/marbury/home.html and http://en.wikipedia.org/wiki/Marbury_v._Madison.

Let’s take a look at the Marbury v. Madison opinion:

In the order in which the court has viewed this subject, the following questions have been considered and decided.

1.Has the applicant a right to the commission he demands?

2.If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

3.If they do afford him a remedy, is it a mandamus issuing from this court?

The answer to numbers 1 and 2 (number 3 isn’t relevant here) are similar to the answers from Marbury v. Madison.  Let’s take a look at the opinion again:

The first object of inquiry is,

1.Has the applicant a right to the commission he demands?

His right originates in an act of congress passed in February 1801, concerning the district of Columbia.

This brings us to the second inquiry; which is,

2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be considered as a mere political act belonging to the executive department alone, for the performance of which entire confidence is placed by our constitution in the supreme executive; and for any misconduct respecting which, the injured individual has no remedy.

That there may be such cases is not to be questioned; but that every act of duty to be performed in any of the great departments of government constitutes such a case, is not to be admitted.

By the constitution of the United States, the president is invested with certain important political powers, in the [5 U.S. 137, 166]   exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.

But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.

The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.

So, if he conceives that by virtue of his appointment he has a legal right either to the commission which has been made out for him or to a copy of that commission, it is equally a question examinable in a court, and the decision of the court upon it must depend on the opinion entertained of his appointment.

That question has been discussed, and the opinion is, that the latest point of time which can be taken as that at which the appointment was complete, and evidenced, was when, after the signature of the president, the seal of the United States was affixed to the commission.

It is then the opinion of the court,

1.That by signing the commission of Mr. Marbury, the president of the United States appointed him a justice [5 U.S. 137, 168]   of peace for the county of Washington in the district of Columbia; and that the seal of the United States, affixed thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years.

2. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy.

Similarly, 10 ILCS 5/25‑8 gives Burris this same right.  But there’s a slight variation: the secretary of state never completed that appointment; however, not doing so is an illegal act.

It is my belief that Burris has been denied his right and that the act of co-signing the the certificate is merely a ministerial function required by ILCS.  Therefore, Burris, through the laws of this country is afforded a remedy.

Burris should be seated in the United States Senate, and Illinois Secretary of State Jesse White should be removed from office for violating 15 ILCS 305/5.

Now, I’d love to hear your thoughts on this, so take the following poll, and feel free to leave a comment below:

Done Ranting,

Ranting Republican
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