Any lawyers on DU today? If they refuse to sit Burris couldn't they refuse to sit someone who. . .

[wndycty]

. . .is elected?

Wouldn't the power that gives Senate the right to refuse to seat Burris also give them right to seat someone elected? They are delaying seating Franken under the same power, right?

[TechBear_Seattle]

1. You may want to read the Constitution, it is all there

Each House shall be the judge of the elections, returns and qualifications of its own members.... -- Article I, Section 5, para. 1, United States Constitution.

Until 1913, Senators were appointed by state legislatures and not elected. Both the original text and the text of Amendment 17 allow for state governors to appoint Senators to fill vacant terms. As a result, the above quoted section has always been interpreted as meaning that the Senate has the constitutional power to judge the appointment of a Senator and not just in cases of election.

My understanding is that the Senate has determined Burris' appointment to be tainted, and are exercising this power to disqualify his appointment, at least until the scandal is resolved. Regarding Franken, the Senate is waiting until the election has been canvassed and the results officially released. Until that happens, no one has been elected to fill that seat, and the Senate cannot judge the election.

[wndycty]

2. Yes or no. . .

. . .could the Senate refuse to seat someone who is elected?

[billyoc]

3. Yes.

[wndycty]

5. Thank you

:kick:

[TechBear_Seattle]

6. Yes, elected or appointed

How this power can be excercised is a matter of Senate rules and not a matter of either the Constitution or law. I believe current rules require a 2/3rds majority to refuse seating, the same number required by the Constitution to expel a Senator. If that is the case, the fact that so many Senators see Burris' appointment as improper is significant. I do know that the power to deny seating has been used rarely since the Civil War.

With regards to Franken, once the election is officially certified -- and not before -- it would require 2/3rds of the Senators to deny him his seat. I think that is very unlikely.

[Kurt_and_Hunter]

4. Yes, in Reid's theory they could refuse to seat anyone for any reason

It's a tyrannical interpretation and, having been dismissed by the Supreme Court long ago, one has to question Reid's seriousness in offering it as a legal argument.

It's just bluster and obstructionism.

[TechBear_Seattle]

7. The Senate can refuse to seat a Senator for any reason, if there are enough votes

Until and unless the Constitution is amended, that power remains; that's my understanding, at least. To what Supreme Court cases are you referring?

[grantcart]

9. I think he is referring to a case Adam Clayton Powell won forcing his seating

in the House of Representatives.

Not sure if the ruling is on point or not.

edited to add

http://en.wikipedia.org/wiki/Powell_v._McCormack

on further edit it states that expulsion requires 2/3 vote.

The opinion stated furthermore that Congress being the sole judge of its members’ qualifications (Art. I, § 5, cl. 1) and the Speech and Debate Clause (Art. I, § 6) do not preclude judicial review of Constitutional issues (raised in this case e.g., in this particular case; but not necessarily in all cases touching upon the subject of speech and debate, or Congresses' judging the qualifications of its members) because "no branch is supreme" and it is the duty of the court to ensure that all branches conform to the Constitution.

I don't think that there appears to be any clear Supreme Court ruling on the subject.

[TechBear_Seattle]

13. Thanks for the reference, I will research this when I can

I will be the first to admit there are a lot of gaps in my knowledge. That's one of the reasons I like DU so much: folks are more than happy to point out when I get things wrong. :toast:

[redstate_democrat]

18. delete

[Freddie Stubbs]

8. The Burris question is moot until his appointment is certified by the IL SoS

If they were to seat him now, it would be a violation of Senate rules.

[ieoeja]

10. If they were to seat him now, it would be a violation of the Constitution.

The Constitution does not empower a governor to appoint a replacement. It allows the state legislature to empower the executive. And as you have already noted, the state legislature requires the secretary of state, also a member of the executive, to certify the governor's choice before it becomes legal.

[TechBear_Seattle]

15. Never mind

I should have finished reading your post before responding. :hi:

[rvablue]

11. And I'll give you another shout of thanks for posting FACT

too many on here yesterday and today are ignoring this one particular fact.

The illegality right now would be in seating Burris, not in not seating him.

Go figure.....don't know why it has been so widely ignored...I happen to LOVE the rule of law.

[wndycty]

12. Here is an interest tidbit, as it relates to Blago inflaming the circus. . .

. . .it was reported that Rod has a number of generic certificates with Jesse White's signature. It was also reported that he could have easily and legally used one of those certificates. This was done for emergency situations however there is no definition of what that emergency was and its open for interpretation.

[rvablue]

16. And is all blind speculation until we see the certificate with BOTH signatures on it. n/t

[K Gardner]

17. I understand this as fact BUT, I thought I heard yesterday that Reid called in "a favor" to get the

IL SoS NOT to sign the certificate.

That seems a shady end-run to me, if true.

[Liberal_Stalwart71]

14. I am listening to C-Span right now and most people agree with me!

What the Senate Dems are doing to Burris is wrong!!

[pdxmom]

19. I wonder if Ted Stevens had won in Alaska, as a convicted felon, would

they have refused to seat him, as well? Or would they have allowed him to be seated and then thrown him out?