Ignoring the Rule of Law

by Mike on January 5, 2009

in Election 2010,Politics

A disturbing trend has emerged over the last few years where intelligent people confuse what law ought to be and what law actually is.  This confusion is usually found in courts that do not understand or choose to ignore their constitutional roles, but not always.

The ongoing saga of Roland Burris is an excellent example of confusion between the rule of law and what people think ought to happen.  As we all know, Democrat Illinois Governor Rod Blagojevich recently appointed Democrat Roland Burris to fill Barack Obama’s vacant Senate seat until the next election.  Not wanting a candidate vulnerable to being attached to Blago in 2010, Harry Reid and the Senate Democrats have repeatedly threatened to refuse to seat Burris.  The rationale is that because Blago is tainted any appointment he makes is tainted.  This misses the point.

The issue is not whether Burris is tainted by his relationship to Blago (he is), but whether the law requires Burris to be seated.  Under Illinois law, when a United States Senate seat is vacant, the Governor is required to nominate a temporary replacement until an election can be held to fill the remainder of the former Senator’s term.  The fact that Blago is unpopular, corrupt, tainted, or a whisker away from impeachment does not change the fact that the man is still Governor under Illinois law.  The appointment may be revolting and something no one wants, but it is legal.

Refusing to seat Burris under these circumstances however, is illegal.  The Constitution allows the Senate to determine the election, qualifications, or returns of a new member; however, it does not permit the Senate to reject a potential member because it is appalled by the Governor who nominated that potential member.  Even the Supreme Court recognized, in Powell v. McCormack, that a House’s power to refuse to seat a member is limited to those situations outlined in the Constitution.  Refusing to seat a Senator based on the feelings (even legitimate ones) of other Senators or any other reason is no excuse to ignore the requirements of law.

In a representative democracy, proposed policies and procedures are subjected to various stages of debate before they are either rejected or implemented into law in one form or another.  Sometimes your proposals carry the day and sometimes they don’t.  That’s democracy.  Ignoring the results of prior debates (i.e. laws) undermines the very system we claim to love.  The Senate should seat Burris.  If the Democrats do not want him in the Senate, then they should not nominate him in 2010.

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