Those of us who were uncomfortable with the blank slate also known as Barack Obama’s record of accomplishment received innumerable assurances that all would be well because “he’s so smart”. Putting aside that Mr. He’s-So-Smart refused to make public his college record and claimed to have “lost” his senior thesis at Columbia, let’s agree that He’s So Smart. Let’s also remember that the President-elect held the position of Adjunct Professor of Law at the University of Chicago Law School for eleven years, during which time he taught constitutional law. One more thing, in less than three weeks he will swear “to the best of [his] ability, [to] preserve, protect and defend the Constitution of the United States”.

So when the much reviled Governor of Illinois made the Burris appointment, did the President-Elect offer a measured view taking into account the relevant legal considerations as he saw them (bringing to bear his considerable expertise in the subject), consistent with the oath of office he is about to take – possibly in contradiction of popular sentiment and the fervent (make that desperate) desire of his party’s leaders to get Rod Blagojevich off Page 1 (i.e., demonstrate leadership)? Let’s take a look.

Here is Obama’s statement on the Burris appointment in pertinent part: “The Senate Democrats made it clear weeks ago that they cannot accept an appointment made by a governor who is accused of selling this very Senate seat. I agree with their decision, and it is extremely disappointing that Governor Blagojevich has chosen to ignore it. I believe the best resolution would be for the Governor to resign his office and allow a lawful and appropriate process of succession to take place.” Speaking of a “lawful process”:

1. The Seventeenth Amendment to the Constitution enables a state's governor, authorized by that state's legislature, to appoint a Senator in the event of a vacancy, until an election is held to fill the vacancy. Illinois law provides: “When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make a temporary appointment to fill such vacancy until the next election of representatives in Congress…” Thus, reading the Constitution together with Illinois law, it appears Governor Blagojevich’s authority to fill the Senate seat is unassailable.

2. Illinois Secretary of State Jesse White has indicated he will not certify any document as an official act of the State of Illinois which purports to be an appointment of a Senator by Governor Blagojevich. The Secretary of State is the official keeper of the Seal of the State of Illinois and is responsible for attaching the seal to official Illinois documents. The Secretary has no legal authority to approve or disapprove of the Blagojevich choice. Attaching the seal is analogous to the role of a notary in affirming a signature. The notary is simply authenticating the signature, not participating in the content of the document. If the lack of a seal were to be a stumbling block in seating Roland Burris in the United States Senate, it is likely the courts would order Secretary White to seal the document.

3. Article I, Section 5 of the US Constitution provides: “Each House shall be the judge of the … qualifications of its own members…” At first blush, this might appear to allow the Senate to deny a seat to a Blagojevich appointee. The Constitution sets forth three qualifications for a Senator in Article I, Section 3 as follows:

a) Be at least 30 years old,

b) Have been a U.S. citizen for at least nine years , and

c) Live in the State he/she is to represent.

In 1969, the United States Supreme Court interpreted those two clauses together in the case of Powell v. McCormack. The House of Representatives had denied a seat to Adam Clayton Powell because of legal problems surrounding Mr. Powell. The Court said that a House of Congress does not have the authority to deny a seat to a properly credentialed candidate who meets the qualifications outlined in the Constitution. Mr. Burris is 71 years of age, a lifelong citizen of the United States and lives in Illinois. He meets the constitutional qualifications.

Hence, despite the statements of Secretary White, Senate Majority Leader Harry Reid and 50 other United States Senators, they do not appear to have the authority to deny a Senate seat to a candidate duly appointed under the United States Constitution and the laws of the State of Illinois. If Barack Obama sees it otherwise perhaps he will get around to enlightening us – or perhaps he won’t.

The Wall Street Journal has helpfully weighed in (with a nice touch about Chris Dodd) -- http://online.wsj.com/article/SB123094461932550595.html#printMode.

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