The law is on Blagojevich’s side

Like it or not, Illinois Gov. Rod R. Blagojevich has the legal authority to appoint Roland Burris to the U.S. Senate, and Burris, the state’s former attorney general, should be allowed to take the seat vacated by President-elect Barack Obama. Senate Democrats are on weak constitutional ground in trying to deny a seat to a properly selected individual. Their claim to the power to exclude a lawfully chosen senator could create a dangerous precedent.

The relevant provision of the Constitution is found in Article I, Section 5. It says: “Each house shall be the judge of the elections, returns and qualifications of its own members.” But the Supreme Court has been clear that these words do not bestow on the House or the Senate unfettered discretion in deciding whom to seat.

In 1969, in Powell vs. McCormack, the Supreme Court held that the House of Representatives could not exclude controversial Rep. Adam Clayton Powell Jr. Powell, a New York Democrat, had been found to have falsified records concerning travel expenses, and there were allegations that he had made illegal payments to his wife. When the 90th Congress was sworn in, Powell was asked to step aside.

He sued the House speaker, John McCormack, a Massachusetts Democrat. The speaker’s side claimed that because the Constitution gave the House the power to “judge” the “qualifications” for its members, it could exclude Powell. But the Supreme Court ruled decisively in favor of Powell. In an opinion by Chief Justice Earl Warren, the court declared: “The Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets the requirements for membership expressly provided in the Constitution.”

Warren, writing for a 7-1 majority (with one justice not participating), quoted James Madison: Allowing the House to exclude properly chosen individuals would be “ ‘vesting an improper and dangerous power in the legislature.’ ” Instead, there must be a “narrow construction of the scope of Congress’ power to exclude members-elect.”

The court concluded that the only qualifications the House could consider were those specified in Article I, Section 2of the Constitution: Was Powell at least 25 years old, seven years a citizen of the United States and a resident of the state from which he had been elected?

The same principle applies now to the Senate. It cannot deem Burris unqualified for a seat because he indisputably meets the Constitution’s requirements for senators (Article I, Section 3): He is at least 30, he has been a citizen for at least nine years and is a resident of the state he represents.

Those who wish to block Blagojevich’s appointment are also mustering a second constitutional argument, citing Congress’ stated power to decide “elections” and “returns” of its members. The claim is that Burris was not properly selected and thus the Senate can exclude him.

The problem here is that Burris unquestionably was lawfully selected. According to the 17th Amendment, “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.” Illinois law gives this power to the state governor, and that is Blagojevich until he is impeached and found guilty.

Allowing the Senate to exclude Burris on any except the narrowest of grounds would create a dangerous precedent. It could open the door to the Senate or the House overturning the will of the people and excluding representatives under one or another pretext. If Burris -- whose appointment meets the legal test, no matter what you think of Blagojevich -- is not seated, other properly elected (or appointed) representatives also are at risk.

The Supreme Court’s conclusion could not be clearer or more on point: “In short, both the intention of the framers, to the extent that it can be determined, and an examination of basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.”

The desire of Senate Democrats, and even Obama, to keep Blagojevich from picking the new senator from Illinois is understandable -- a federal attorney arrested the governor on charges of trying to sell the appointment for personal gain. Although Burris is untainted by the scandal, any selection made by Blagojevich is suspect.

But the taint of Blagojevich’s alleged crimes does not justify ignoring the Constitution. For the last eight years, the Bush administration has ignored or twisted the Constitution to serve what it believed were higher ends. It would be an enormous mistake, as a new administration prepares to take charge, for Democrats to send the Senate down that same path.

Erwin Chemerinsky is the dean of the UC Irvine School of Law.